IN THE SENATE OF THE UNITED STATES
March 7, 2018
Mr. Kennedy introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation
To amend the Communications Act of 1934 to ensure Internet openness, to prohibit blocking of lawful content, applications, services, and non-harmful devices, to prohibit impairment or degradation of lawful Internet traffic, to limit the authority of the Federal Communications Commission and to preempt State law with respect to Internet openness obligations, to provide that broadband Internet access service shall be considered to be an information service, and for other purposes.
This Act may be cited as the
Open Internet Preservation Act.
Title I of the Communications Act of 1934 (47 U.S.C. 151 et seq.) is amended by adding at the end the following:
Obligations of broadband Internet access service providers
A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged—
may not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management; and
may not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.
The Commission shall enforce the obligations established in subsection (a) and the obligations established in subsection (e)(2) through adjudication of complaints alleging violations of such respective subsection but may not, under any provision of law, whether by rulemaking or otherwise—
expand the Internet openness obligations for provision of broadband Internet access service beyond the obligations established in subsection (a); or
expand the Internet openness obligations for the offering or provision of specialized services beyond the obligations established in subsection (e)(2).
Formal complaint procedures
Not later than 60 days after the date of the enactment of this section, the Commission shall adopt formal complaint procedures to address alleged violations of subsection (a) and alleged violations of subsection (e)(2). Such procedures shall include a deadline (relative to the date of filing of a complaint under such procedures) for the disposition of such complaint.
Preemption of State law
No State or political subdivision of a State shall adopt, maintain, enforce, or impose or continue in effect any law, rule, regulation, duty, requirement, standard, or other provision having the force and effect of law relating to or with respect to Internet openness obligations for provision of broadband Internet access service.
Other laws and considerations
Nothing in this section—
supersedes any obligation or authorization a provider of broadband Internet access service may have to address the needs of emergency communications or law enforcement, public safety, or national security authorities, consistent with or as permitted by applicable law, or limits the provider’s ability to do so; or
prohibits reasonable efforts by a provider of broadband Internet access service to address copyright infringement or other unlawful activity.
Except as provided in paragraph (2), nothing in this section shall be construed to limit the ability of broadband Internet access service providers to offer specialized services.
Prohibition on certain practices
Specialized services may not be offered or provided in ways that threaten the meaningful availability of broadband Internet access service or that have been devised or promoted in a manner designed to evade the purposes of this section.
Broadband To be considered information service
Notwithstanding any other provision of law, the provision of broadband Internet access service or any other mass-market retail service providing advanced telecommunications capability (as defined in section 706 of the Telecommunications Act of 1996 (47 U.S.C. 1302)) shall be considered to be an information service.
Reasonable network management
For purposes of subsection (a), a network management practice is reasonable if it is primarily used for and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.
In this section:
Broadband Internet access service
broadband Internet access service means a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service.
Functional equivalent; evasion
Such term includes any service that—
the Commission finds to be providing a functional equivalent of the service described in subparagraph (A); or
is used to evade the obligations set forth in subsection (a).
Network management practice
network management practice means a practice that has a primarily technical network management justification. Such term does not include other business practices.
specialized services means services other than broadband Internet access service that are offered over the same network as, and that may share network capacity with, broadband Internet access service.