H. R. 3458
IN THE HOUSE OF REPRESENTATIVES
July 31, 2009
Mr. Markey of Massachusetts (for himself and Ms. Eshoo) introduced the following bill; which was referred to the Committee on Energy and Commerce
To amend the Communications Act of 1934 to establish a national broadband policy, safeguard consumer rights, spur investment and innovation, and for related purposes.
This Act may be cited as the
Internet Freedom Preservation Act of
The Congress finds the following:
Our Nation’s economy and society are increasingly dependent on Internet services.
The Internet is an essential infrastructure that is comparable to roads and electricity in its support for a diverse array of economic, social, and political activity.
Internet technologies and services hold the promise of advancing economic growth, fostering investment, creating jobs, and spurring technological innovation.
As the Nation becomes more reliant upon such Internet technologies and services, unfettered access to the Internet to offer, access, and utilize content, services, and applications is vital.
The global leadership in high technology that the United States provides today stems directly from historic policies that embraced competition and openness and that have ensured that telecommunications networks are open to all lawful uses by all users.
The Internet was enabled by those historic policies and provides an open architecture medium for worldwide communications, providing a low barrier to entry for Internet-based content, applications, and services.
Due to legal and marketplace changes, these features of the Internet are no longer certain, and erosion of these historic policies permits telecommunications network operators to control who can and who cannot offer content, services, and applications over the Internet utilizing such networks.
The national economy would be severely harmed if the ability of Internet content, service, and application providers to reach consumers was frustrated by interference from broadband telecommunications network operators.
The overwhelming majority of residential consumers subscribe to Internet access service from 1 of only 2 wireline providers: the cable operator or the telephone company.
Internet access service providers have an economic interest to discriminate in favor of their own services, content, and applications and against other providers.
A network neutrality policy based upon the principle of nondiscrimination and consistent with the history of the Internet’s development is essential to ensure that Internet services remain open to all consumers, entrepreneurs, innovators, and providers of lawful content, services, and applications.
A network neutrality policy is also essential to give certainty to small businesses, leading global companies, investors, and others who rely upon the Internet for commercial reasons.
A network neutrality policy can also permit Internet service providers to take action to protect network reliability, prevent unwanted electronic mail, and thwart illegal uses in the same way that telecommunications network operators have historically done consistent with the overarching principle of non-discrimination.
Because of the essential role of Internet services to the economic growth of the United States, to meet other national priorities, and to our right to free speech under the First Amendment of the Constitution of the United States, the United States should adopt a clear policy preserving the open nature of Internet communications and networks.
Title I of the Communications Act of 1934 (47 U.S.C. 151 et seq.) is amended by adding at the end the following:
Internet freedom policy
It is the policy of the United States—
to protect the right of consumers to access lawful content, run lawful applications, and use lawful services of their choice on the Internet;
to preserve and promote the open and interconnected nature of broadband networks and to enable consumers to connect to such networks their choice of lawful devices, as long as such devices do not harm the network;
to promote consumer choice and competition among providers of lawful content, applications, and services;
to ensure that consumers receive meaningful information regarding their communications services;
to ensure the ability to use or offer lawful broadband content, applications, and services for lawful purposes, as has been the policy and history of the Internet and the basis of user expectations since its inception;
to guard against discriminatory favoritism for, or degradation of, lawful content, applications, or services by network operators based upon their source, ownership, or destination on the Internet;
to preserve the freedom of independent Internet content, application, and service providers to compete and innovate;
to foster an evolving level of capacity available throughout communications networks to support competition and innovation for lawful Internet content, applications, and services, including applications and services that require substantial downstream and upstream bandwidth; and
to ensure that the Internet remains an indispensable platform for innovation in the United States economy, thereby enabling the Nation to provide global leadership in online commerce and technological progress.
Duties of Internet access service providers
With respect to any Internet access service offered to the public, each Internet access service provider shall have the duty to—
not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service to access, use, send, post, receive, or offer any lawful content, application, or service through the Internet;
not impose a charge on any Internet content, service, or application provider to enable any lawful Internet content, application, or service to be offered, provided, or used through the provider’s service, beyond the end user charges associated with providing the service to such provider;
not prevent or obstruct a user from attaching any lawful device to or utilizing any such device in conjunction with such service, provided such device does not harm the provider’s network;
offer Internet access service to any person upon reasonable request therefor;
not provide or sell to any content, application, or service provider, including any affiliate provider or joint venture, any offering that prioritizes traffic over that of other such providers on an Internet access service; and
not install or utilize network features, functions, or capabilities that impede or hinder compliance with this section.
Not later than 90 days after the date of enactment of the Internet Freedom Preservation Act of 2009, the Commission shall promulgate rules to ensure that providers of Internet access service—
fulfill the duties described in subsection (b);
disclose meaningful information to consumers about a provider’s Internet access service in a clear, uniform, and conspicuous manner and in conformity with the duties described in subsection (e);
generally, to the extent feasible, make available sufficient network capacity to users to enable the provision, availability, and use of an Internet access service to support lawful content, applications, and services that require high bandwidth communications to and from an end user; and
not operate Internet access services in an anticompetitive, unreasonable, unfair, discriminatory, or deceptive manner.
Reasonable network management
Nothing in this section shall be construed to prohibit an Internet access provider from engaging in reasonable network management consistent with the policies and duties of nondiscrimination and openness set forth in this Act. For purposes of subsections (b)(1) and (b)(5), a network management practice is a reasonable practice only if it furthers a critically important interest, is narrowly tailored to further that interest, and is the means of furthering that interest that is the least restrictive, least discriminatory, and least constricting of consumer choice available. In determining whether a network management practice is reasonable, the Commission shall consider, among other factors, the particular network architecture or technology limitations of the provider.
Transparency for consumers
With respect to any Internet access service or private transmission capacity offered to the public, each Internet access service provider shall provide to consumers and make publicly available detailed information about such services, including information about the speed, nature, and limitations of such services. Each Internet access service provider must publicly disclose, at a minimum, network management practices that affect communications between a user and a content, application, or service provider in the ordinary, routine use of such broadband service.
Stand-Alone Internet access service
Within 180 days after the date of enactment of the Internet Freedom Preservation Act of 2009, the Commission shall promulgate rules to ensure that an Internet access service provider does not require a consumer, as a condition on the purchase of any Internet access service offered by such provider, to purchase any other service or offering. The Commission shall adopt any other rules it determines necessary to make such requirement effective and meaningful for consumers.
Not later than 180 days after the date of enactment of the Internet Freedom Preservation Act of 2009, the Commission shall complete all actions necessary to—
promote an ever-increasing level of Internet access service to end users;
ensure that such evolving level of service provided to end users is capable of supporting lawful content, applications, and services and provides ample bandwidth for such traffic to and from an end user;
promote both facilities-based and nonfacilities-based competition to enable information service providers to have marketplace choices for transmission capacity to reach end users;
define the term
private transmission capacity services;
clarify whether private transmission capacity services may not be subject to the duties described in subsections (b)(5) and (b)(6);
ensure that private transmission capacity services do not undermine the purposes of this Act and do not diminish or degrade the level of Internet access service offered to the public by the same provider; and
ensure that private transmission capacity services are not offered in an anticompetitive, unreasonable, discriminatory, or deceptive manner.
Not later than 180 days after the date of enactment of the Internet Freedom Preservation Act of 2009, the Commission shall—
prescribe rules to permit any aggrieved person to file a complaint with the Commission concerning any violation of this section;
establish enforcement and expedited adjudicatory review procedures consistent with the objectives of this section, including the resolution of any complaint described in paragraph (1) not later than 90 days after such complaint was filed, except for good cause shown;
prescribe rules with respect to the reasonable network management practices described under subsection (d) for all Internet access services; and
prescribe rules with respect to the appropriate disclosure obligations under subsection (e) for private transmission capacity services.
The Commission shall enforce compliance with this section under title V, except that—
no forfeiture liability shall be determined under section 503(b) against any person unless such person receives the notice required by section 503(b)(3) or section 503(b)(4); and
the provisions of section 503(b)(5) shall not apply.
In addition to any other remedy provided under this Act, the Commission may issue any appropriate order, including an order—
directing an Internet access service provider to pay damages to a complaining party for a violation of this section or the regulations promulgated pursuant to this section; or
to enforce the provisions of this section.
Nothing in this Act shall be construed or interpreted to affect any law or regulation addressing prohibited or unlawful activity, including any laws or regulations prohibiting theft of content.
For purposes of this section, the following definitions apply:
Internet access service
Internet access service means a
2-way transmission offered by an Internet access service provider that
transmits information between 2 or more points and that has as its primary, but
not exclusive, purpose the enabling of data to be sent or received from the
Internet access service provider
Internet access service
provider means a person or entity that operates or resells and controls
any facility used to provide an Internet access service directly to the public,
whether provided for a fee or for free, and whether provided via wire or radio,
except when such service is offered as an incidental component of a
noncommunications contractual relationship.
user means any residential or business subscriber who, by
way of an Internet access service, takes and utilizes Internet access services,
whether provided for a fee, in exchange for an explicit benefit, or for
Reasonable network management
management shall be defined by the Commission through regulations.