1.This Act may be cited as
the Internet Non-Discrimination Act of
2006
.
2.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.
3.In this Act, the following definitions shall
apply:
(1)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)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)The
term Commission
means the Federal Communications
Commission.
(4)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)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)The
term person
means any natural person, partnership, firm,
association, corporation, limited liability company, or other legal
entity.
(7)
(A)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)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)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)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.
4.Obligations of
network operators
(a)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 operatorsNotwithstanding 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.
5.Complaints
regarding violations
(a)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)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)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)
(1)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 orderThe 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)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)
(1)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 decisionIf 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)
(1)
(A)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)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)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)
(i)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 orderIf 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)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 partiesNothing 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)).
6.
(a)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)Each violation of a requirement of section 4(a) shall
be treated as a separate incident for purposes of imposing penalties under
subsection (a).