II 113th CONGRESS 1st Session S. 1680 IN THE SENATE OF THE UNITED STATES November 12, 2013 Mr. Rockefeller introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To amend the Communications Act of 1934 to increase consumer choice and competition in the online video programming distribution marketplace, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Consumer Choice in Online Video Act . (b) Table of contents The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Findings; statement of policy. Sec. 3. Definitions. TITLE I—Billing for Internet Service Sec. 101. Consumer protections. TITLE II—Online Video Distribution Alternatives Sec. 201. Protections for online video distributors. Sec. 202. Federal Communications Commission report on peering. TITLE III—Non-facilities based multichannel video programming distributors Sec. 301. Non-facilities based multichannel video programming distributors. TITLE IV—Miscellaneous Sec. 401. Technical and conforming amendments. Sec. 402. Provisions as complementary. Sec. 403. Applicability of antitrust laws. Sec. 404. Severability. 2. Findings; statement of policy (a) Findings Congress makes the following findings: (1) Online video distribution has the potential to increase consumer choice in video programming, lower prices for video services, bring innovative services to the video distribution marketplace, and disrupt the traditional multichannel video distribution marketplace. (2) Evolving consumer demand, improving technology, and increased choice of viewing devices can make online video distributors stronger competitors to multichannel video programming distributors for an increasing number of viewers. (3) Unlike traditional multichannel video programming distributors, online video distributors do not own distribution facilities and are dependent upon Internet service providers (many of which are affiliated with multichannel video programming distributors) for the delivery of their content to viewers. (4) Internet service providers’ management and pricing of broadband services affects online video distributors. Because online video distribution consumes significant amounts of Internet bandwidth, Internet service providers’ use of usage-based billing practices can negatively impact the competitive position of online video distributors and the appeal of their services to consumers. (5) Internet service providers that are affiliated with a multichannel video programming distributor or an online video distributor have an increased incentive to degrade the delivery of, or block entirely, traffic from the websites of other online video distributors, or speed up or favor access to the content and aggregation websites of their affiliates, because online video distributors pose a threat to those affiliates’ video programming distribution businesses. (6) Similarly, multichannel video programming distributors who are affiliated with Internet service providers, online video distributors who are affiliated with Internet service providers, or video programming vendors with significant market power have the incentive and ability to use their competitive position to engage in unfair methods of competition meant to hinder competition from online video distributors. (7) Growth of online video distribution alternatives also will depend, in part, on the distributor's ability to acquire programming from content producers. Without access to content on competitive terms, an online video distributor suffers a distinct competitive harm. (8) Some traditional multichannel video programming distributors have admitted to taking steps to limit the ability of online video distributors to access content or otherwise effectively compete in the video distribution marketplace. (9) Traditional multichannel video programming distributors and even other online video distributors have the incentive and ability to convince their video programming vendor partners not to sell content to online video distributors or to sell content to them at competitively disadvantageous prices, terms, and conditions. They also have the incentive and ability to retaliate against a video programming vendor that sells content to an online video distributor. (10) Traditional multichannel video programming distributors have the incentive and ability to use their relationships with manufacturers of television sets, set-top boxes, and other customer premises equipment to favor their own services over offerings from online video distributors. (11) There is a substantial governmental and First Amendment interest in— (A) requiring Internet service providers to provide consumers with accurate information about their Internet service, and to ensure that data usage monitoring systems are accurate, effective, and not used for an anticompetitive purpose; (B) promoting a diversity of views provided through multiple technology media; (C) promoting the development of online video distribution platforms and fair competition amongst all distributors and vendors of video programming; (D) preventing Internet service providers that are affiliated with a multichannel video programming distributor or an online video distributor from discriminating against unaffiliated content and distributors in its exercise of control over consumers’ broadband connections; (E) encouraging and protecting consumer choice and innovation in online video distribution, including with respect to distribution of broadcast television content; and (F) providing consumers with the ability to choose to receive local broadcast television content from various markets. (b) Statement of policy It is the policy of the Congress that— (1) consumers should be fully informed about the terms and conditions related to the purchase of Internet service from an Internet service provider; (2) usage-based billing systems used by an Internet service provider should not be used in a way that harms development and use of high-bandwidth consuming Internet applications and services that might compete with that Internet service provider’s own services; (3) the availability of a diversity of views and information should be promoted to the public through various video programming distribution platforms, including those providing service by utilizing the Internet or other IP-based transmission paths; (4) existing multichannel video programming distributors and video programming vendors should not have or exercise undue market power with respect to online video distributors; and (5) Internet service providers should not hinder through anticompetitive behavior the ability of online video distributors to provide services to their subscribers. 3. Definitions In this Act: (1) Broadcast television licensee The term broadcast television licensee means the licensee of a full-power television station or a low-power television station. (2) Commission The term Commission means the Federal Communications Commission. (3) Internet service provider The term Internet service provider means any provider of Internet service to an end user, regardless of the technology used to provide that service. (4) Non-facilities based multichannel video programming distributor The term non-facilities based multichannel video programming distributor means an online video distributor that has made the election permitted under section 672. (5) Online video distributor The term online video distributor means any entity, including a non-facilities based multichannel video programming distributor, that— (A) has its principal place of business in the United States; and (B) distributes video programming in the United States by means of the Internet or another IP-based transmission path provided by a person other than that entity. (6) Television network The term television network means a television network in the United States which offers an interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated broadcast stations in 10 or more States. (7) Usage-based billing (A) In general The term usage-based billing means a system of charging a consumer for Internet service or the use of an IP-based transmission path provided by an Internet service provider or other entity that is based upon the amount of data the consumer uses over a period of time. (B) Inclusions The term usage-based billing includes— (i) imposing a cap on the amount of data the consumer can use based on the price the consumer is willing to pay for service; (ii) charging a consumer varying amounts each billing cycle based on a per-megabyte, per-gigabyte, or similar rate; and (iii) establishing different tiers of prices based on the amount of data the consumer elects to consume in a billing cycle, whether or not the amount acts as a cap on the consumer’s service. (8) Video programming The term video programming means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, whether or not such programming is delivered using a portion of the electromagnetic frequency spectrum. (9) Video programming vendor The term video programming vendor means a person engaged in the production, creation, or wholesale distribution of video programming for sale. I Billing for Internet Service 101. Consumer protections Title VII of the Communications Act of 1934 ( 47 U.S.C. 601 et seq. ) is amended— (1) by inserting before section 701 the following: I General provisions ; and (2) by adding at the end the following: II Internet Services Billing 721. Consumer protections (a) General Disclosures (1) In general Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall promulgate regulations requiring Internet service providers to disclose certain information that will assist a consumer in making an informed decision about the purchase of Internet service. (2) Requirements The regulations under paragraph (1) shall require, at a minimum, that— (A) any advertising related to Internet service include plain language disclosure of any information the Commission considers necessary for a consumer to make an informed decision about the purchase of that Internet service; (B) an Internet service provider provide a plain language disclosure to a consumer prior to the purchase of Internet service that includes— (i) the length of the contract; (ii) the terms of renewal; (iii) a projected monthly bill, including all fees and costs associated with the Internet service; (iv) if the consumer is receiving promotional pricing for service, a projected monthly bill for service once that promotional pricing period has ended; (v) the procedures to cancel the Internet service, including any policies related to early termination fees; (vi) the average actual data transmission speeds, including both upload and download speeds; (vii) any policies or practices regarding network management, including limiting service speeds or prioritizing content; and (viii) any other information that the Commission considers necessary for the consumer to make an informed decision about the purchase of the Internet service. (b) Special disclosures for usage-Based billing (1) In general As part of the rulemaking under subsection (a), the Commission shall promulgate regulations to protect consumers in the use of usage-based billing by Internet service providers. (2) Plain language disclosure of terms and conditions (A) In general The regulations under paragraph (1) shall require an Internet service provider to provide a plain language disclosure of all terms and conditions associated with its use of usage-based billing to a consumer prior to the purchase of Internet service. (B) Contents The plain language disclosure under this paragraph shall include— (i) an explanation of how usage-based billing will be applied to the consumer; (ii) a complete list of the tiers of service; (iii) comparisons of how much data of varying types, including video programming in standard and high-definition, the consumer would be able to consume each month under each tier; (iv) the procedure for providing the consumer the notifications under paragraph (4); (v) an explanation of the consequences, if any, to a consumer for exceeding the consumer's data usage amount, including any fees that may be charged and any options a consumer may have to avoid those fees; (vi) if the Internet service provider provides a tool for a consumer to monitor the consumer's data usage, a description of the tool and how to use it; (vii) the appeals procedure under paragraph (5); and (viii) any other information that the Commission considers necessary to protect consumers in the use of usage-based billing by Internet service providers. (3) Monthly disclosure of data usage (A) Data usage An Internet service provider that uses usage-based billing shall provide a plain language disclosure to a consumer of the consumer's data usage during each billing cycle as part of the consumer's bill. (B) Data Usage Trends An Internet service provider that uses usage-based billing shall include in the consumer's bill information documenting the consumer's data usage over the prior 6 monthly bills or over a period beginning on the date that the consumer contracted for the Internet service, whichever is shorter. (4) Notifications (A) In General An Internet service provider that uses usage-based billing shall provide to a consumer notification of the amount of data the consumer has remaining at the midpoint of a billing cycle, and at any other increments the Commission finds are in the public interest. (B) Form The Commission may determine the form of the notifications required under this paragraph. (5) Consumer Appeals Each Internet service provider that uses usage-based billing shall establish an appeals procedure for a consumer to obtain more detailed information about the consumer's Internet data usage and to challenge the Internet service provider's determination of that consumer's data usage. (c) Truth-in-Billing for Internet Services (1) In General Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall update its truth-in-billing rules to extend the rules to Internet service providers. (2) Bundled services As part of the rulemaking under paragraph (1), the Commission shall consider whether it is in the public interest to establish truth-in-billing rules for bundled communications service packages. (d) Exemption The Commission may exempt an Internet service provider serving 20,000 or fewer subscribers from the requirements of this section. (e) Special consideration The Commission may take into account the special considerations in an Internet service provider's delivery technology, including wireless, when implementing this section. 722. Certification of data usage monitoring systems (a) Independent certification required (1) In general An Internet service provider may not use a data usage monitoring system as part of usage-based billing unless the data usage monitoring system is certified under this section. (2) Development of standards The Commission, after consultation with the National Institute of Standards and Technology, shall develop standards to ensure that a data usage monitoring system accurately measures a consumer's usage of data. (3) Certification process The Commission may certify a data usage monitoring system for use in usage-based billing if it determines that the data usage monitoring system accurately measures consumer data usage and is in material compliance with the standards under paragraph (2). (4) Permissible delegation The Commission may designate 1 or more impartial third parties to conduct the certification of a data usage monitoring system under this section. (b) Periodic Review The Commission shall determine how to ensure that an Internet service provider’s data usage monitoring system remains in compliance with this section. (c) Definition of data usage monitoring system In this section, the term data usage monitoring system means a system of monitoring and calculating the amount of data a user has consumed— (1) while accessing the Internet; (2) while using hardware, software, or applications that consume data transmitted over the Internet; or (3) while accessing another IP-based transmission path provided by an Internet service provider or another entity. (d) Penalties The Commission is authorized to assess penalties against any Internet service provider that fails to comply with this section. (e) Rulemaking (1) In general The Commission shall promulgate regulations to implement this section not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act . (2) Exemption The regulations under paragraph (1) may provide an exemption from the regulations for an Internet service provider serving 20,000 or fewer subscribers. (3) Special considerations The Commission may take into account the special considerations in an Internet service provider's delivery technology, including wireless, when implementing this section. . II Online Video Distribution Alternatives 201. Protections for online video distributors Title VI of the Communications Act of 1934 ( 47 U.S.C. 521 et seq. ) is amended by adding at the end the following: VI Online video distributors 661. Definitions In this part: (1) Affiliated with For purposes of sections 663, 664, and 667, the term affiliated with means that the Internet service provider, multichannel video programming distributor, online video distributor, or video programming vendor, as appropriate, directly or indirectly, is owned or controlled by, owns or controls, or is under common ownership or control with another Internet service provider, multichannel video programming distributor, online video distributor, or video programming vendor, as appropriate. For purposes of this paragraph, the term own means to own an equity interest, or the equivalent thereof, of more than 10 percent. (2) Video programming The term video programming means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, whether or not such programming is delivered using a portion of the electromagnetic frequency spectrum. 662. Enhancement of consumer choice in online video The purposes of this part are— (1) to promote the public interest, convenience, and necessity by increasing competition, innovation, and diversity in the video programming marketplace; (2) to enhance consumer access to online video distribution platforms and consumer choice in online video programming; and (3) to increase the availability of video programming on all platforms, including Internet-based platforms. 663. Development of competition and diversity in online video distribution (a) Prohibition It shall be unlawful for a designated distributor to engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which are to hinder significantly or prevent an online video distributor from providing video programming to consumers, including over any platform or device capable of delivering that online video distributor's content to consumers. (b) Regulations (1) In general Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall promulgate regulations to implement this section. (2) Minimum Contents At a minimum, the regulations under this section shall— (A) specify the conduct that constitutes a prima facie violation of subsection (a); and (B) establish effective safeguards to prevent a designated distributor from— (i) unduly or improperly influencing the decision of any other entity to make a television set or other customer premises equipment incompatible with the services provided by any online video distributor; (ii) unduly or improperly using its own customer premises equipment to discriminate against, or otherwise favor its own services over, the service provided by any online video distributor; (iii) unduly or improperly influencing the decision of any other entity to sell, or the prices, terms, and conditions of the sale of, video programming to any online video distributor; and (iv) providing an incentive to any entity in an attempt to deny video programming to an online video distributor. (c) Exceptions (1) In general Subject to paragraph (2), a designated distributor shall not be prohibited from— (A) imposing reasonable requirements for creditworthiness, offering of service, and financial stability and standards regarding character and technical quality; (B) establishing different prices, terms, and conditions to take into account economies of scale, cost savings, or other direct and legitimate economic benefits reasonably attributable to the number of subscribers served by the online video distributor; and (C) imposing reasonable requirements to ensure the security of the video programming being provided to the online video distributor, including means to authenticate the right of the distributor’s subscribers to access the programming. (2) Limitations An exception under paragraph (1)— (A) shall be related to the substantial, real, and legitimate business concerns of the designated distributor; and (B) may not be used in an anticompetitive manner. (d) Definition of designated distributor (1) In general In this section, the term designated distributor means— (A) a multichannel video programming distributor affiliated with an Internet service provider; (B) an online video distributor affiliated with an Internet service provider; or (C) a video programming vendor with significant market power. (2) Significant market power The Commission shall establish rules for determining whether a video programming vendor has significant market power under paragraph (1)(C). 664. Access to video programming (a) Prohibitions It shall be unlawful for a multichannel video programming distributor or an online video distributor— (1) to include in a contract with any video programming vendor a provision that serves as a substantial disincentive for the video programming vendor to sell its content to an online video distributor; (2) to use any practice, understanding, arrangement, or other agreement with a video programming vendor that has the effect of causing the video programming vendor to face a substantial disincentive to sell its content to an online video distributor; or (3) to enter into a contract with a video programming vendor that has the effect of preventing an online video distributor from making the video programming vendor's content available on any platform or device capable of delivering that distributor's content to its subscribers. (b) Contract limitations A multichannel video programming distributor or an online video distributor may not include in any contract with a video programming vendor any provision that requires the multichannel video programming distributor or online video distributor, as applicable, to be treated in material parity with other similarly situated multichannel video programming distributors or online video distributors with regard to pricing or other terms and conditions of carriage of video programming. (c) Retaliation prohibited A multichannel video programming distributor or an online video distributor may not retaliate against— (1) any video programming vendor for making its video programming available to an online video distributor; (2) any online video distributor for obtaining video programming from a video programming vendor; or (3) any entity for exercising a right under this Act. (d) Exception Notwithstanding subsection (a) or any other provision of this part, a multichannel video programming distributor or an online video distributor may enter into an exclusive contract with a video programming vendor for video programming provided by that video programming vendor if the contract does not exceed the limits or violate the prohibitions under subsection (e). (e) Public Interest Limitations on Exclusive Contracts (1) In General The Commission shall adopt limits on— (A) the ability of a multichannel video programming distributor or an online video distributor to enter into any contract for video programming that includes an exclusivity provision that substantially deters the development of an online video distribution alternative; and (B) the ability of an online video distributor to enter into any contract for video programming that includes an exclusivity provision that substantially deters the development of an online video distribution alternative. (2) Prohibited contracts The Commission shall prohibit— (A) a multichannel video programming distributor from entering into an exclusive contract with a video programming vendor that is affiliated with the multichannel video programming distributor; and (B) an online video distributor from entering into an exclusive contract with a video programming vendor that is affiliated with the online video distributor. (3) Limitations on other exclusive contracts for video programming (A) In general The Commission shall establish criteria for determining whether an exclusive contract for programming substantially deters the development of an online video distribution alternative. (B) Considerations In establishing the criteria under subparagraph (A), the Commission shall consider the totality of the circumstances surrounding the contract, including— (i) the duration of the exclusivity period; (ii) the effect of the exclusive contract on capital investment in the production and distribution of video programming; (iii) the time period after initial first-day distribution of video programming to consumers when the multichannel video programming distributor or the online video distributor is granted exclusive access to distribute the programming; and (iv) the likelihood that the exclusive contract will enhance diversity in programming on video distribution platforms. (f) Online Distribution of Content by a Video Programming Vendor (1) In general A multichannel video programming distributor or an online video distributor may not enter into an agreement that limits or prohibits a video programming vendor from making its video content available to consumers free over the Internet. (2) Exception The prohibition under paragraph (1) shall not apply if the duration of the agreement is 30 days or less. (g) Prices, terms, and conditions for programming A video programming vendor may establish different prices, terms, and conditions for its video programming if, taking into account economies of scale, cost savings, or other direct and legitimate economic benefits that are reasonably attributable to the number of subscribers served by an online video distributor, the prices, terms, and conditions— (1) are related to substantial, real, and legitimate business concerns of the video programming vendor; and (2) are not used in an anticompetitive manner. (h) Regulations (1) In general Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall promulgate regulations to specify particular conduct that is prohibited by this section. (2) Minimum contents The regulations under this section shall establish, at a minimum— (A) effective safeguards to prevent any activity prohibited by this section; and (B) complaint and contract review procedures to facilitate the Commission's ability to determine if a multichannel video programming distributor, a video programming vendor, or an online video distributor has violated this section. (i) Existing contracts (1) In general Subject to paragraph (2), nothing in this section shall affect any contract, understanding, or arrangement that was entered into on or before December 1, 2013. (2) Exceptions No contract, understanding, or arrangement entered into on or before December 1, 2013, that violates this section shall be enforceable by any person after the date that is 3 years after the date of enactment of the Consumer Choice in Online Video Act . (3) Limitation on renewals A contract, understanding, or arrangement that was entered into on or before December 1, 2013, but that is renewed or extended after the date of enactment of the Consumer Choice in Online Video Act shall not be exempt under paragraph (1). 665. Fostering access to video programming (a) In general Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall commence a proceeding to determine the additional steps it should take, in the public interest, to foster the ability of online video distributors to gain access to video programming, offer innovative services, and compete with multichannel video programming distributors. (b) Limitation The Commission shall not compel a video programming vendor to sell its video programming to an online video distributor as part of any rules adopted under this section. 666. Broadcast television licensees and television networks (a) Duty To Negotiate It shall be unlawful for a broadcast television licensee or television network— (1) to refuse to negotiate with an online video distributor for carriage of the broadcast television licensee’s or the television network’s content, as applicable; or (2) to place any restriction on an online video distributor's ability to make the broadcast television licensee’s or the television network’s content, as applicable, available on any platform or device that is capable of delivering the online video distributor’s content to its subscribers. (b) Refusal To negotiate; Commission determination The Commission shall determine what constitutes a refusal to negotiate under subsection (a). The Commission may require a broadcast television licensee or television network to engage in good faith negotiations with an online video distributor. The Commission shall define good faith for purposes of this subsection. (c) Online Retransmission of In-Market Broadcast Signals (1) Signal parity (A) In general It shall be unlawful for a broadcast television licensee to provide an over-the-air signal that differs from a retransmission of that signal provided to a multichannel video programming distributor or an online video distributor. (B) Exception Subparagraph (A) shall not apply if— (i) the variation in the 2 signals consists of a change to 1 or more commercial advertisements of not more than 60 seconds in duration embedded in a broadcast television licensee’s signal; and (ii) the broadcast television licensee is not using the variation under clause (i) to increase the overall amount of advertising time in its over-the-air signal. (2) Antenna rental services (A) In general Notwithstanding any other provision of this Act, except subparagraph (C), an entity may rent to a consumer access to an individual antenna to view over-the-air broadcast television signals transmitted from that antenna— (i) directly to the consumer over the Internet or another IP-based transmission path; or (ii) to an individual data storage system, including an online remote data storage system, for recording and then made accessible to that consumer through the Internet or another IP-based transmission path. (B) Retransmission consent fees An antenna rental service described under subparagraph (A) shall be exempt from paying retransmission consent fees under section 325 of this Act to any broadcast television station whose signal is received by the individual antenna and retransmitted to the subscriber. (C) Conditions of rental services An antenna rental service described under subparagraph (A) shall— (i) only provide a subscriber with access to over-the-air broadcast television signals received by an individual antenna located in the same designated market area (as defined in section 671 of this Act) in which that subscriber resides; and (ii) make available to a subscriber all over-the-air broadcast signals that are received by the individual antenna rented by that subscriber, unless a signal is of such poor quality that it cannot be transmitted to the consumer in a reasonably viewable form. (d) Limits in Existing Programming and Affiliation Contracts (1) In general It shall be unlawful for any entity selling or otherwise providing video programming to be transmitted by a broadcast television licensee or television network to include in any contract, agreement, understanding, or arrangement with that licensee or network a limitation on the ability of that licensee or network to comply with the requirements of this section. (2) Existing contracts (A) In general Subject to subparagraph (B), nothing in this section shall affect any contract, understanding, or arrangement that was entered into on or before December 1, 2013. (B) Exceptions No contract, understanding, or arrangement entered into on or before December 1, 2013, that violates this section shall be enforceable by any person after the date that is 3 years after the date of enactment of the Consumer Choice in Online Video Act . (C) Limitation on renewals A contract, understanding, or arrangement that was entered into on or before December 1, 2013, but that is renewed or extended after the date of enactment of the Consumer Choice in Online Video Act shall not be exempt under subparagraph (A). (e) Regulations Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall promulgate regulations to implement this section. The Commission shall not compel a broadcast television licensee or television network to sell its video programming to an online video distributor as part of any rules adopted under this section. 667. Consumer access to content (a) In General It shall be unlawful for a designated Internet service provider to engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which are to hinder significantly or to prevent an online video distributor from providing video programming to a consumer. (b) Regulations Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall promulgate regulations to specify particular conduct that is prohibited by subsection (a). The Commission's regulations under this section shall ensure, at a minimum, that a designated Internet service provider does not— (1) block, degrade, or otherwise impair any content provided by an online video distributor; (2) unreasonably discriminate in transmitting the content of an unaffiliated online video distributor over the designated Internet service provider's network; (3) provide benefits in the transmission of the video content of any company affiliated with the Internet service provider through specialized services or other means, or otherwise leverage its ownership of the physical delivery architecture to benefit that affiliated company in a way that has the effect of harming competition from an unaffiliated online video distributor; or (4) use billing systems, such as usage-based billing, in a way that deters competition from unaffiliated online video distributors that may be in competition with the Internet service provider's or its affiliate's services. (c) Definition of designated Internet service provider In this section, the term designated Internet service provider means an Internet service provider that is affiliated with a multichannel video programming distributor, an online video distributor, or a video programming vendor. 668. Blocking consumer access to online video programming (a) In general No video programming vendor that has made available its video programming to consumers online may restrict access to that online video programming for a subscriber of a multichannel video programming distributor or its affiliate, or an online video distributor or its affiliate, during the time that vendor is involved in a dispute with such distributor. (b) Exception (1) In general If a video programming vendor requires a consumer to purchase access to its online video programming through a contract with a multichannel video programming distributor or an online video distributor then that vendor may restrict access to that online video programming during the time that the vendor is involved in a dispute with that distributor. (2) Limitation The exception under this subsection shall apply only to a subscriber to video services provided by a multichannel video programming distributor or an online video distributor involved in the dispute and not to a subscriber to any other service provided by that distributor or its affiliate. (c) Remedies (1) In general Any entity that is aggrieved by a violation of this section may bring a civil action in a United States district court or in any other court of competent jurisdiction. (2) Authority The court may— (A) grant a temporary or final injunction on such terms as it may deem reasonable to prevent or restrain violations of this section; (B) award any damages it deems appropriate; and (C) direct the recovery of full costs, including awarding reasonable attorneys’ fees to an aggrieved party who prevails. (d) Definitions In this section: (1) Available online The term available online means both available over the Internet and through applications, software, or other similar services on a mobile device. (2) Dispute The term dispute includes— (A) a dispute over carriage of the programming provided by a video programming vendor to a multichannel video programming distributor or online video distributor; and (B) a dispute over carriage of the programming provided by a television licensee or television network under section 325(b) of this Act. (3) Entity that is aggrieved The term entity that is aggrieved includes— (A) a consumer whose access to online video programming has been restricted in violation of this section; and (B) a multichannel video programming distributor or its affiliate, or an online video distributor or its affiliate, that has had a subscriber's access to online video programming restricted in violation of this section. 669. Remedies and adjudications (a) Adjudicatory Proceedings Any online video distributor aggrieved by conduct that it alleges constitutes a violation of this part, or the regulations of the Commission under this part, may commence an adjudicatory proceeding at the Commission. (b) Remedies (1) Remedies authorized (A) Interim remedies The Commission may authorize interim remedies during the pendency of a complaint. (B) Appropriate remedies Upon completion of an adjudicatory proceeding under this section, the Commission shall have the power to order appropriate remedies, including, if necessary, the power to establish prices, terms, and conditions of sale of programming to the aggrieved online video distributor. (2) Additional remedies The remedies provided in paragraph (1) are in addition to and not in lieu of the remedies available under title V or any other provision of this Act. (c) Procedures In promulgating regulations to implement this part, the Commission shall— (1) provide for an expedited review of any complaint made under this part, including a procedural timeline to conclude the review of each complaint not later than 180 days after the date the complaint is filed; (2) establish procedures for the Commission to collect any data, including the right to obtain copies of all contracts and documents reflecting any practice, understanding, arrangement, or agreement alleged to violate this part, as the Commission requires to carry out this part; and (3) provide for penalties to be assessed against any person filing a frivolous complaint under this part. . 202. Federal Communications Commission report on peering (a) In General The Commission shall study— (1) the status of peering, transit, and interconnection agreements related to the transport and delivery of content over the Internet and other IP-based transmission paths; and (2) what impact the agreements under paragraph (1) or disputes about the agreements under paragraph (1) have on consumers and competition with respect to online video. (b) Report Not later than 3 years after the date of enactment of this Act, the Commission shall report the findings of the study under subsection (a) to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives. III Non-facilities based multichannel video programming distributors 301. Non-facilities based multichannel video programming distributors Title VI of the Communications Act of 1934 ( 47 U.S.C. 521 et seq. ), as amended by title II of this Act, is further amended by adding at the end the following: VII Non-facilities based multichannel video programming distributors 671. Definitions In this part: (1) Designated market area The term designated market area means a designated market area as determined by Nielsen Media Research or by any successor system of dividing broadcast television licensees into local markets that the Commission determines is equivalent to the designated market area system created by Nielsen Media Research. (2) Local commercial television station The term local commercial television station means, with respect to a subscriber to a non-facilities based multichannel video programming distributor, any full power commercial television station licensed and operating on a channel regularly assigned to a community in the same designated market area as the subscriber. (3) Local noncommercial educational television station The term local noncommercial educational television station means, with respect to a subscriber to a non-facilities based multichannel video programming distributor, a television broadcast station that is a noncommercial educational broadcast station (as defined in section 397 of this Act), licensed and operating on a channel regularly assigned to a community in the same designated market area as the subscriber. (4) Non-local commercial television station The term non-local commercial television station means, with respect to a subscriber to a non-facilities based multichannel video programming distributor, any full power commercial television station licensed and operating on a channel regularly assigned to a community not located in the same designated market area as the subscriber. (5) Video programming The term video programming means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, whether or not such programming is delivered using a portion of the electromagnetic frequency spectrum. 672. Right to elect status (a) In General Any online video distributor that provides programming in a manner reasonably equivalent to a multichannel video programming distributor may elect to be treated as a non-facilities based multichannel video programming distributor under this part. (b) Procedure for Election Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall establish the form and procedures for an online video distributor to make the election permitted under subsection (a). (c) Definition of Reasonably Equivalent For purposes of this section, the term reasonably equivalent — (1) means providing multiple channels of video programming that allow a subscriber to watch that programming in a fashion comparable to the services provided by multichannel video programming distributors, regardless of the means used to transmit the multiple channels of video programming; (2) shall be based upon the subscriber experience in using the service provided by the online video distributor, and not the underlying technology used by the online video distributor; and (3) may include services that include the ability for a subscriber to record video programming and watch recorded programming at another time if the underlying video programming service being recorded conforms to this subsection. 673. Effect of election Any online video distributor that elects to be treated as a non-facilities based multichannel video programming distributor under section 672 shall have all of the rights and responsibilities under this part. 674. Federal Communications Commission proceeding (a) In general Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall— (1) determine whether any of its rules and regulations applicable to a multichannel video programming distributor shall also be applied, in the public interest, to a non-facilities based multichannel video programming distributor; (2) require a non-facilities based multichannel video programming distributor to comply with the access to broadcast time requirement under section 312(a)(7) of this Act and the use of facilities requirements under section 315 of this Act; (3) consider whether it is in the public interest for the Commission to adopt minimum technical quality standards for a non-facilities based multichannel video programming distributor; and (4) adopt any other rules the Commission considers necessary to implement this part. (b) Limitation The Commission shall not require, as part of its rulemaking under subsection (a), a non-facilities based multichannel video programming distributor to comply with the basic tier and tier buy-through requirement under section 623(b)(7). 675. Program access for non-facilities based multichannel video programming distributors (a) In General The Commission shall prohibit practices, understandings, arrangements, and activities, including any exclusive contract for video programming between a multichannel video programming distributor and a video programming vendor or an online video distributor and a video programming vendor that prevents a non-facilities based multichannel video programming distributor from obtaining programming from any video programming vendor. (b) Specific Actions Prohibited (1) Material parity restrictions A multichannel video programming distributor or an online video distributor may not include in any contract with a video programming vendor any provision that requires the multichannel video programming distributor or online video distributor, as applicable, to be treated in material parity with other similarly situated multichannel video programming distributors or online video distributors with regard to pricing or other terms and conditions of carriage of video programming. (2) Retaliation prohibited A multichannel video programming distributor or an online video distributor may not retaliate against— (A) any video programming vendor for making its video programming available to a non-facilities based multichannel video programming distributor; (B) any non-facilities based multichannel video programming distributor for obtaining video programming from a video programming vendor; or (C) any entity for exercising a right under this Act. 676. Consumer choice in video programming (a) In general As part of the rulemaking required by section 674, the Commission shall determine what, if any, additional steps it should take, in the public interest, to allow a non-facilities based multichannel video programming vendor to offer a subscriber greater choice over the video programming that is part of the subscriber's service. (b) Considerations As part of the proceeding under subsection (a), the Commission shall consider whether to limit a video programming vendor's use of certain contractual terms and conditions that disincentivize or impede the ability of a subscriber to have greater choice over the video programming packages or options the subscriber can purchase from a non-facilities based multichannel video programming vendor. (c) Limitation The Commission shall not compel a video programming vendor to sell its video programming to a non-facilities based multichannel video programming vendor as part of any rules adopted under this section. 677. Carriage of commercial broadcast television signals (a) In-Market Broadcast Television Signals (1) In general At the request of a non-facilities based multichannel video programming distributor serving a designated market area, a local commercial television broadcast station located in that designated market area shall enter into negotiations for carriage of its content over that distributor’s system. (2) Good faith requirements A local commercial television station subject to the duty to negotiate under paragraph (1) shall engage in good faith negotiations for carriage of its signal in the designated marketed area where the station is located. The Commission shall define good faith for purposes of this paragraph. (3) Good signal requirements A local commercial television broadcast station being carried by a non-facilities based multichannel video programming distributor under this subsection shall be responsible for delivering a good quality signal suitable for distribution by that distributor. (b) Out-of-Market Broadcast Television Signals (1) In general In addition to any signal carried under subsection (a), a non-facilities based multichannel video programming distributor also may deliver to a subscriber the signal of a non-local commercial broadcast television station under this subsection and subsection (c). (2) Deemed significantly viewed (A) In general A signal of a non-local commercial broadcast television station delivered by a non-facilities based multichannel video programming distributor under this section shall be deemed to be significantly viewed within the meaning of section 76.54 of title 47, Code of Federal Regulations. (B) Exemptions The following regulations shall not apply to a signal that is eligible to be carried under this subsection: (i) Section 76.92 of title 47, Code of Federal Regulations (relating to cable network non-duplication). (ii) Section 76.122 of title 47, Code of Federal Regulations (relating to satellite network non-duplication). (iii) Section 76.101 of title 47, Code of Federal Regulations (relating to cable syndicated program exclusivity). (iv) Section 76.123 of title 47, Code of Federal Regulations (relating to satellite syndicated program exclusivity). (v) Section 76.111 of title 47, Code of Federal Regulations (relating to cable sports blackout). (vi) Section 76.127 of title 47, Code of Federal Regulations (relating to satellite sports blackout). (3) Subscriber preference In delivering a non-local commercial broadcast television station signal to a subscriber under this subsection, and consistent with subsection (c)— (A) the non-facilities based multichannel video programming distributor shall provide the subscriber with information regarding all signals that the distributor is capable of making available to the subscriber under this subsection; (B) the non-facilities based multichannel video programming distributor shall offer a subscriber the option to choose each non-local commercial television station signal the subscriber wants to receive as part of the subscriber's service; and (C) if a subscriber does not make a choice under subparagraph (B), the non-facilities based multichannel video programming distributor shall take reasonable steps to deliver to the subscriber the signal of each non-local commercial television station that is closest in proximity. (4) Definition of closest in proximity (A) In general For purposes of paragraph (3), the term closest in proximity means the non-local commercial television station whose community of license is the closest in distance to the subscriber’s place of residence. (B) Inclusions For purposes of paragraph (3), the term closest in proximity includes a non-local commercial television station located in a State other than the State of the subscriber's place of residence. (c) Subscriber Rights (1) In general Notwithstanding any other provision of law, a subscriber to a non-facilities based multichannel video programming distributor shall be entitled to receive programming from not more than 2 commercial television stations that are affiliates of the same television network and not more than 1 of the affiliates may be located in a designated market area where the subscriber does not reside. (2) Local signal not required A non-facilities based multichannel video programming distributor shall not be required to carry the signal of a local commercial television station under subsection (a) as a condition to carrying and delivering to a consumer a non-local commercial broadcast television signal under subsection (b). (3) Mobile platforms A subscriber shall have the right to view any commercial television station signal provided to that subscriber under this section at any time and on any device, including a mobile device and any other device not permanently located in the subscriber’s place of residence, that a non-facilities based multichannel video programming distributor has made capable of delivering the distributor’s service to that subscriber. (d) Limits in Existing Programming and Affiliation Contracts (1) In general It shall be unlawful for any entity selling or otherwise providing video programming to be transmitted by a local or non-local commercial television station to include in any contract, agreement, understanding, or arrangement with that station a limitation on the ability of the station to comply with the requirements of this section. (2) Existing contracts (A) In general Subject to subparagraph (B), nothing in this section shall affect any contract, understanding, or arrangement that was entered into on or before December 1, 2013. (B) Exceptions No contract, understanding, or arrangement entered into on or before December 1, 2013, that violates this section shall be enforceable by any person after the date that is 3 years after the date of enactment of the Consumer Choice in Online Video Act . (C) Limitation on renewals A contract, understanding, or arrangement that was entered into on or before December 1, 2013, but that is renewed or extended after the date of enactment of the Consumer Choice in Online Video Act shall not be exempt under subparagraph (A). 678. Carriage of noncommercial, educational, and informational programming (a) Local noncommercial educational television stations (1) In general If a non-facilities based multichannel video programming distributor elects to carry a local commercial broadcast television signal under section 677(a), that non-facilities based multichannel video programming distributor shall carry, upon request, the signal of a local noncommercial educational television station located in the same designated market area of the local commercial television broadcast station being carried under that section. (2) Carriage only in local market (A) In general A local noncommercial educational television station shall be entitled to carriage only in the designated market area to which that station is assigned. (B) Systems of noncommercial educational broadcast stations In the case of a system of 3 or more noncommercial educational broadcast stations licensed to a single State, public agency, or political, educational, or special purpose subdivision of a State, the carriage right under this subsection shall apply to any designated market area in the State where that system is located. (3) Good signal requirements A local noncommercial educational television station that requests to be carried by a non-facilities based multichannel video programming distributor under paragraph (1) shall be responsible for delivering a good quality signal suitable for distribution by that distributor. (b) Channel reservation requirements (1) In general The Commission shall require a non-facilities based multichannel video programming distributor to reserve a portion of its channel capacity, equal to not less than 3.5 percent or not more than 7 percent, exclusively for noncommercial programming of an educational or informational nature. (2) Use of unused channel capacity A non-facilities based multichannel video programming distributor may use for any purpose any unused channel capacity required to be reserved under this subsection pending the actual use of that channel capacity for noncommercial programming of an educational or informational nature. (3) Prices, terms, and conditions A non-facilities based multichannel video programming distributor shall meet the requirements of this subsection by making channel capacity available to each national educational programming supplier, upon reasonable prices, terms, and conditions, as determined by the Commission under paragraph (5). (4) Editorial control A non-facilities based multichannel video programming distributor may not exercise any editorial control over any video programming provided under this subsection. (5) Limitations In determining reasonable prices under paragraph (3)— (A) the Commission, among other considerations, shall consider the nonprofit character of the programming provider and any Federal funds used to support that programming; (B) the Commission shall not permit the prices to exceed, for any channel capacity made available under this subsection, 50 percent of the total direct costs of making the channel capacity available; and (C) in the calculation of total direct costs, the Commission shall exclude— (i) the marketing costs, general administrative costs, and similar overhead costs of the non-facilities based multichannel video programming distributor; and (ii) the revenue that the non-facilities based multichannel video programming distributor might have obtained by making that channel capacity available to a video programming vendor. (6) Definition of channel capacity In this section, the term channel capacity means the total number of channels of video programming provided to a subscriber by the non-facilities based multichannel video programming distributor, without regard to whether that non-facilities based multichannel video programming distributor uses a portion of the electromagnetic frequency spectrum to deliver that channel of video programming. 679. Licensing (a) In General A non-facilities based multichannel video programming distributor that is carrying any broadcast television station signal under section 677 or section 678 shall— (1) be considered to be a cable system under section 111 of title 17, United States Code; and (2) be subject to— (A) the statutory licensing requirements set forth in sections 111(c) and 111(e) of that title; (B) payment of the fees required by section 111(d) of that title; and (C) the penalties under section 111 of that title for failure to pay the fees required by that section. (b) Local service area of a primary transmitter For purposes of the application of section 111 of title 17, United States Code, to a non-facilities based multichannel video programming distributor under this section— (1) a local commercial television station’s local service area of a primary transmitter shall consist of the entirety of that station’s designated market area; and (2) a local noncommercial educational television station’s local service area of a primary transmitter shall consist of the entirety of that station’s designated market area. 680. Exclusion from franchise requirements A non-facilities based multichannel video programming distributor shall not be subject to local franchising requirements under section 621 of this Act or otherwise be regulated by any franchising authority. 681. Privacy protections (a) In general A non-facilities based multichannel video programming distributor shall comply with the privacy protections applicable to satellite services as set forth in section 338(i) of this Act and the Commission’s regulations under that section. (b) Penalties Any non-facilities based multichannel video programming distributor that fails to comply with the provisions under section 338(i) of this Act, and the Commission’s regulations under that section, shall be subject to the penalties set forth in section 338(i)(7) of this Act. 682. Consumer equipment Not later than 1 year after the date of enactment of the Consumer Choice in Online Video Act , the Commission shall commence a proceeding to consider whether to adopt rules— (1) to establish standards to ensure that services and platforms provided by a non-facilities based multichannel video programming distributor can interconnect and interface with— (A) any Internet-capable television and television receiver; and (B) any other Internet-capable consumer electronics equipment that facilitates the viewing of video programming on a television receiver; and (2) to promote the commercial availability of other devices that will permit a consumer to access non-facilities based multichannel video programming distribution services and platforms over equipment of the consumer's choice. 683. Effective competition standard The number of households subscribing to a non-facilities based multichannel video programming distributor in a franchise area under this part shall not be considered for purposes of a determination by the Commission of whether a cable system is subject to effective competition in that franchise area under section 623 of this Act. 684. Remedies and adjudications (a) Adjudicatory proceedings Any entity aggrieved by conduct that it alleges constitutes a violation of this part, or the regulations of the Commission under this part, may commence an adjudicatory proceeding at the Commission. (b) Remedies (1) Remedies authorized (A) Interim remedies The Commission may authorize interim remedies during the pendency of a complaint. (B) Appropriate remedies Upon completion of an adjudicatory proceeding under this section, the Commission shall have the power to order appropriate remedies, including, if necessary, the power to establish prices, terms, and conditions of sale of programming to, or prices, terms, and conditions of the transport of the content of, the aggrieved entity. (2) Additional remedies The remedies provided in paragraph (1) are in addition to and not in lieu of the remedies available under title V or any other provision of this Act. (c) Procedures In promulgating regulations to implement this part, the Commission shall— (1) provide for an expedited review of any complaint made under this part, including a procedural timeline to conclude the review of each complaint not later than 180 days after the date the complaint is filed; (2) establish procedures for the Commission to collect any data, including the right to obtain copies of all contracts and documents reflecting any practice, understanding, arrangement, or agreement alleged to violate this part, as the Commission requires to carry out this part; and (3) provide for penalties to be assessed against any person filing a frivolous complaint under this part. . IV Miscellaneous 401. Technical and conforming amendments Section 602(20) of title VI of the Communications Act of 1934 ( 47 U.S.C. 522(20) ) is amended by inserting unless expressly provided otherwise, before the term video programming means . 402. Provisions as complementary The provisions of this Act are in addition to, and shall not affect the operation of, other Federal, State, or local laws or regulations regulating billing for Internet service, online video distribution, or non-facilities based multichannel video programming distributors, except if the provisions of any other law are inconsistent with the provisions of this Act, the provisions of this Act shall be controlling. 403. Applicability of antitrust laws Nothing in this Act or the amendments made by this Act shall be construed to alter or restrict in any manner the applicability of any Federal or State antitrust law. 404. Severability If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held invalid, the remainder of this Act, the amendments made by this Act, and the application of such provision or amendment to any person or circumstance shall not be affected thereby.