[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2360 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 2360

   To ensure and promote a free and open Internet for all Americans.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 2, 2006

   Mr. Wyden introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
   To ensure and promote a free and open Internet for all Americans.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Internet Non-Discrimination Act of 
2006''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Since passage of the Telecommunications Act of 1996, 
        the Internet has grown robustly. Today, Americans are changing 
        how they access the Internet, moving from dial-up to broadband 
        for their home connections. According to the Pew Internet and 
        American Life Project, 72 percent of Americans use the Internet 
        and 59 percent of Americans with home Internet have a high-
        speed Internet connection.
            (2) Americans use the Internet for many daily activities. 
        Over 17 percent of Americans have sold something over the 
        Internet. Everyday, approximately 60,000,000 Americans use 
        search engines to get access to information. 80 percent of 
        Americans have looked online for health care information. In 
        growing numbers, Americans are using the Internet to place 
        phone calls, watch their favorite televisions shows or movies, 
        and play games.
            (3) The growth of the Internet and its success are due in 
        large part to the freedom that has always existed on the 
        content and applications layer of the Internet. Innovation has 
        thrived on this layer, as anyone with a good idea has the 
        ability to access consumers. The continuation of this freedom 
        is essential for future innovation.
            (4) Freedom on the content and applications layer has also 
        led to robust competition for retail goods for consumers. 
        Consumers can shop at thousands upon thousands of retailers 
        from their home computers, including small businesses located 
        miles away in other towns, States, and even countries.
            (5) Such freedom is leading to the development of important 
        new entertainment offerings, on-demand video and movie 
        purchases, Internet Protocol television, and enhanced gaming 
        options. The entertainment options available in the future will 
        only be limited by the bandwidth that can be used and the 
        innovation of people all over the world.
            (6) Despite the growth of the Internet and increased access 
        to the Internet for Americans, there is very little choice in 
        who provides them high-speed Internet access. According to an 
        April 2005 White Paper by Harold Feld and Gregory Rose, et. 
        al., entitled, ``Connecting the Public: The Truth About 
        Municipal Broadband'' only 2 percent of Americans get high-
        speed Internet access from someone other than their local phone 
        company or cable provider. According to the Federal 
        Communications Commission, approximately 20 percent of 
        Americans do not have a high-speed Internet access provider 
        that offers them service.
            (7) As more and more Americans get high-speed access to the 
        Internet without having much choice of who their provider will 
        be, it is important that Congress protect the freedom on the 
        Internet to ensure its continued success.

SEC. 3. DEFINITIONS.

    In this Act, the following definitions shall apply:
            (1) Application or service.--The term ``application or 
        service'' means any information or service--
                    (A) by which an end-user through software or a 
                device engages in an exchange of data or information; 
                and
                    (B) conveyed over communications.
            (2) Bits.--The term ``bits'' or ``binary digits'' means the 
        smallest unit of information in which form data is transported 
        on the Internet as a single digit number in base-2.
            (3) Commission.--The term ``Commission'' means the Federal 
        Communications Commission.
            (4) Communications.--The term ``communications''--
                    (A) means any voice, video, or data application or 
                service, regardless of the facilities or technology 
                used, that--
                            (i) is a transmission to subscribers by use 
                        of--
                                    (I) the public rights-of-way;
                                    (II) spectrum;
                                    (III) numbering or addressing 
                                resources; or
                                    (IV) other inputs licensed or 
                                managed by a unit of local government, 
                                or a private entity working in concert 
                                with such unit of local government, for 
                                the benefit of the public;
                            (ii) is offered to the public, or as to 
                        such classes of subscribers as to be 
                        effectively available directly to the public, 
                        with or without a fee; and
                            (iii) enables an end user, as part of such 
                        service, to transmit content of their own 
                        design or choosing between or among points 
                        specified by such user;
                    (B) includes interactive on-demand services, as 
                such term is defined in section 602(12) of the 
                Communications Act of 1934 (47 U.S.C. 522(12)); and
                    (C) does not include cable service, as such term is 
                defined in section 602(6) of the Communications Act of 
                1934 (47 U.S.C. 522(6)).
            (5) Content.--The term ``content'' means information--
                    (A) in the form of writing, signs, signals, 
                pictures, and sounds of all kinds, including stored 
                information requested by an end user; and
                    (B) that is generated based on the input or request 
                of such user.
            (6) Person.--The term ``person'' means any natural person, 
        partnership, firm, association, corporation, limited liability 
        company, or other legal entity.
            (7) Network operator.--
                    (A) In general.--The term ``network operator'' 
                means any person who owns, operates, controls, or 
                resells and controls any facility that provides 
                communications directly to a subscriber.
                    (B) Obligations.--Any obligation imposed on a 
                network operator by the provisions of this Act shall 
                apply only to the extent that such network operator is 
                engaged in providing communications.
            (8) Subscriber.--The term ``subscriber'' means any person 
        who--
                    (A) is an end user of an application or service 
                provided through communications; and
                    (B) consumes or provides goods provided through 
                such application or service.
            (9) Transmission component.--The term ``transmission 
        component'' means the portion of communications which enables 
        an end user to transmit content of their own design and 
        choosing between or among points specified by such user.

SEC. 4. OBLIGATIONS OF NETWORK OPERATORS.

    (a) In General.--A network operator shall--
            (1) not interfere with, block, degrade, alter, modify, 
        impair, or change any bits, content, application or service 
        transmitted over the network of such operator;
            (2) not discriminate in favor of itself or any other 
        person, including any affiliate or company with which such 
        operator has a business relationship in--
                    (A) allocating bandwidth; and
                    (B) transmitting content or applications or 
                services to or from a subscriber in the provision of a 
                communications;
            (3) not assess a charge to any application or service 
        provider not on the network of such operator for the delivery 
        of traffic to any subscriber to the network of such operator;
            (4) offer communications such that a subscriber can access, 
        and a content provider can offer, unaffiliated content or 
        applications or services in the same manner that content of the 
        network operator is accessed and offered, without interference 
        or surcharges;
            (5) allow the attachment of any device, if such device is 
        in compliance with part 68 of title 47, Code of Federal 
        Regulations, without restricting any application or service 
        that may be offered or provided using such a device;
            (6) treat all data traveling over or on communications in a 
        non-discriminatory way;
            (7) offer just, reasonable, and non-discriminatory rates, 
        terms, and conditions on the offering or provision of any 
        service by another person using the transmission component of 
        communications;
            (8) provide non-discriminatory access and service to each 
        subscriber; and
            (9) post and make available for public inspection, in 
        electronic form and in a manner that is transparent and easily 
        understandable, all rates, terms, and conditions for the 
        provision of any communications.
    (b) Preserved Authority of Network Operators.--Notwithstanding the 
requirements described in subsection (a), a network operator--
            (1) may--
                    (A) take reasonable and non-discriminatory measures 
                to protect subscribers from adware, spyware, malware, 
                viruses, spam, pornography, content deemed 
                inappropriate for minors, or any other similarly 
                nefarious application or service that harms the 
                Internet experience of subscribers, if such 
                subscribers--
                            (i) are informed of the application or 
                        service; and
                            (ii) are given the opportunity to refuse or 
                        disable any such preventative application or 
                        service;
                    (B) support an application or service intended to 
                prevent adware, spyware, malware, viruses, spam, 
                pornography, content deemed inappropriate for minors, 
                or any other similarly nefarious application or service 
                that harms the Internet experience of subscribers, if 
                such subscribers--
                            (i) are informed of the application or 
                        service; and
                            (ii) are given the opportunity to refuse or 
                        disable any such preventative application or 
                        service; and
                    (C) take reasonable and non-discriminatory measures 
                to protect the security of the network of such 
                operator, if such operator faces serious and 
                irreparable harm; and
            (2) shall--
                    (A) give priority to an emergency communication;
                    (B) comply with any court-ordered law enforcement 
                directive; and
                    (C) prevent any activity that is unlawful or 
                illegal under any Federal, State, or local law.

SEC. 5. COMPLAINTS REGARDING VIOLATIONS.

    (a) Complaint.--Any aggrieved party may submit a written complaint 
to the Commission seeking a ruling that a network operator has violated 
a requirement described in section 4(a).
    (b) Content of Complaint.--In any complaint submitted under 
subsection (a) an aggrieved party shall make a prima facie case that--
            (1) a network operator violated a requirement of section 
        4(a);
            (2) such violation was not a preserved authority described 
        in subparagraph (A) or (B) of section 4(b)(1); and
            (3) such violation is harmful to such party.
    (c) 7-Day Acceptance Period.--Not later than 7 days after the date 
of the submission of a complaint under subsection (a), the Commission 
shall issue a decision regarding its acceptance or denial of the prima 
facie case made by an aggrieved party.
    (d) Cease and Desist.--
            (1) In general.--If the Commission accepts the prima facie 
        case of an aggrieved party under subsection (c), a network 
        operator shall be required to cease and desist the action that 
        is the underlying basis of the complaint for the duration of 
        the proceeding on such complaint, until such time as the 
        Commission may rule that a violation of a requirement of 
        section 4(a) has not occurred.
            (2) Authority to extend cease and desist order.--The 
        Commission shall have the authority to extend any cease and 
        desist order to any similarly situated person as the Commission 
        determines necessary and appropriate.
    (e) Burden of Proof.--If the Commission accepts the prima facie 
case of an aggrieved party under subsection (c), a network operator 
shall bear the burden of proving that--
            (1) no violation of section 4(a) occurred; or
            (2) such violation was a preserved authority described in 
        section 4(b).
    (f) Final Decision.--
            (1) 90-day period.--Not later than 90 days after the date 
        of the submission of a complaint under subsection (a), the 
        Commission shall issue a final decision regarding the request 
        for a ruling contained in such complaint.
            (2) Failure to issue decision.--If the Commission fails to 
        issue a decision at the expiration of the 90-day period 
        described in paragraph (1), a violation of a requirement of 
        section 4(a) shall be deemed to have occurred.
    (g) Rules of Construction.--
            (1) Delegation.--
                    (A) In general.--Nothing in this section shall be 
                construed--
                            (i) to prevent the Commission from 
                        delegating any authority granted to it under 
                        this section to a relevant office or bureau 
                        pursuant to the authority granted the 
                        Commission under section 5(c) of the 
                        Communications Act of 1934 (47 U.S.C. 155(c)); 
                        or
                            (ii) to limit the Commission from adopting 
                        any appropriate procedures pursuant to any 
                        other provision of law.
                    (B) Limitation.--The rule established under 
                subparagraph (A) shall only apply if at the expiration 
                of the 90-day period described in subsection (f)(1)--
                            (i) the Commission issues a final decision 
                        that is ripe for judicial review; or
                            (ii) a violation of a requirement of 
                        section 4(a) shall be deemed to have occurred 
                        under subsection (f)(2).
            (2) Petition for reconsideration.--
                    (A) In general.--Nothing in this section shall be 
                construed to affect the ability of any eligible party 
                to file a petition for reconsideration under section 
                405 of the Communications Act of 1934 (47 U.S.C. 405).
                    (B) Timing.--
                            (i) 90-day period.--Not later than 90 days 
                        after the date of the submission of a petition 
                        for reconsideration under section 405 of the 
                        Communications Act of 1934 (47 U.S.C. 405), the 
                        Commission shall issue an order granting or 
                        denying such petition.
                            (ii) Failure to issue an order.--If the 
                        Commission fails to issue a decision at the 
                        expiration of the 90-day period described in 
                        clause (i), the previous decision of the 
                        Commission shall be considered affirmed and 
                        final for purposes of judicial review.
            (3) Judicial review.--Notwithstanding section 402(b) of the 
        Communications Act of 1934 (47 U.S.C. 402(b)) and any other 
        provision of law, any appeal of a decision of the Commission 
        under this section shall be made to United States district 
        court for the district in which the principle place of business 
        of the aggrieved party is located.
            (4) Intervention by third parties.--Nothing in this section 
        shall be construed to prevent any interested person from 
        intervening in any appeal of a decision of the Commission in 
        accordance with section 402(e) of the Communications Act of 
        1934 (47 U.S.C. 402(e)).

SEC. 6. PENALTIES.

    (a) In General.--If the Commission issues a ruling under section 5 
that a network operator is in violation of a requirement of section 
4(a), such network operator shall be subject to the penalties 
prescribed under section 501 of the Communications Act of 1934 (47 
U.S.C. 501).
    (b) Separate Violations.--Each violation of a requirement of 
section 4(a) shall be treated as a separate incident for purposes of 
imposing penalties under subsection (a).
                                 <all>