[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2902 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 2902
To authorize the Federal Trade Commission, in consultation with the
Federal Communications Commission, to review volume usage service plans
of major broadband Internet service providers to ensure that such plans
are fairly based on cost.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 16, 2009
Mr. Massa (for himself, Mr. Perriello, and Mr. Hinchey) introduced the
following bill; which was referred to the Committee on Energy and
Commerce
_______________________________________________________________________
A BILL
To authorize the Federal Trade Commission, in consultation with the
Federal Communications Commission, to review volume usage service plans
of major broadband Internet service providers to ensure that such plans
are fairly based on cost.
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 ``Broadband Internet Fairness Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Increased deployment and adoption of broadband,
including high-bandwidth uses of broadband, is key to allow
broadband stimulus funds to produce maximal economic recovery
and growth, and is key to the network effects of economic
benefit associated with the Internet.
(2) No volume usage service plan for broadband Internet
access can be just and reasonable unless charges are fairly
based on the cost of the usage.
(3) Volume usage charges for broadband Internet access that
are substantially above cost in a market without sufficient
competition constitute an unfair and unconscionable practice,
as substantially above-cost pricing has anti-competitive and
anti-consumer effects on Internet use, including in particular
Internet use for online video delivery.
(4) The market for video delivery is effectively controlled
by companies operating both traditional cable delivery and
broadband Internet access services, increasing incentives to
raise prices for Internet use in high volumes, to discourage
consumers who may wish no longer to subscribe to traditional
cable services.
(5) The Federal Trade Commission Act authorizes the Federal
Trade Commission to investigate and remedy consumer pricing
practices that it determines to be unfair or anti-competitive,
including pricing practices by Internet service providers, as
Internet services are not provided on a common carrier basis
and therefore are not subject to the common carrier limitation
on Federal Trade Commission jurisdiction.
SEC. 3. UNJUST, UNREASONABLE, OR UNREASONABLY DISCRIMINATORY VOLUME
USAGE SERVICE PLANS.
(a) Prohibition.--It shall be unlawful for major broadband Internet
service providers to offer volume usage service plans imposing rates,
terms, and conditions that are unjust, unreasonable, or unreasonably
discriminatory.
(b) Service Plan Analysis Filing Required.--Major broadband
Internet service providers offering, or proposing to offer, volume
usage service plans to any portion of their service territory are
required to file with the Federal Trade Commission a service plan
analysis that--
(1) identifies the different service tiers of broadband
Internet service to be offered on the basis of different data
transmission volumes;
(2) specifies the different rates, terms, and conditions to
be imposed for such tiers;
(3) provides an analysis of the economic reasonableness and
necessity for imposing such tiers--
(A) based on assigning the capital costs of
deploying the facilities needed to provide such
different service tiers;
(B) based on assigning different operating costs,
if any, that are attributable to the provision of
different service tiers; or
(C) based on other factors and costs specified by
the provider as a justification for the proposed volume
usage service plan;
(4) assess the impact of such service tiers on the ability
of residential consumers to access widely used Internet
services, including uses for agricultural, medical,
educational, environmental, library, and nonprofit purposes;
and
(5) specifies the basis upon which the different rates of
charges under the service plan will be revised over the
following 3 years, and inflation factors or other variables
that will be used to calculate or limit such revisions.
SEC. 4. ENFORCEMENT BY THE FEDERAL TRADE COMMISSION.
(a) Enforcement by FTC.--The Commission shall, in consultation with
the Federal Communications Commission, review each service plan
analysis submitted under section 3(b) in order to determine whether the
volume usage service plan is in violation of section 3(a). A violation
of section 3(a) shall be treated as a violation of a rule defining an
unfair or deceptive act or practice prescribed under section
18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C.
57(a)(1)(B)). The Federal Trade Commission shall enforce this Act in
the same manner, by the same means, and with the same jurisdiction as
though all applicable terms and provision of the Federal Trade
Commission Act were incorporated into and made a part of this Act.
(b) Review and Remediation.--After an initial review of any service
plan analysis submitted under section 3(b), if the Commission
identifies any elements of such plan that appear to constitute a
violation of section 3(a), the Commission shall notify the provider
submitting such plan of such elements and of the steps the provider may
take to correct such violations. The Commission shall, prior to
initiating any action under subsection (e), review the steps taken by
the provider to correct such violations.
(c) Factors Considered.--In determining whether a major broadband
Internet service provider has violated section 3(a), the Commission, in
consultation with the Federal Communications Commission, shall take
into account, among other factors--
(1) whether the service plan analysis filed with the
Commission does not properly assign operating costs to each of
the service tiers within the volume usage service plan;
(2) whether the rates, terms, and conditions are not
justified by the costs of deploying or operating the facilities
required to provide and maintain the service tiers within the
volume usage service plan;
(3) whether the volume usage service plan imposes unjust,
unreasonable, or unreasonably discriminatory charges on
residential consumers;
(4) whether the volume usage service plan deters or
impedes--
(A) the deployment of and access to widely used
Internet applications and services; or
(B) the participation of residential consumers in
the growth and development of regional, national, and
international economies;
(5) whether the volume usage service plan unfairly
penalizes consumers choosing to use high bandwidth Internet
applications and services, including those used for one-way or
two-way video;
(6) whether the volume usage service plan has anti-
competitive effects on the market for video delivery or the
markets for Internet applications or services;
(7) whether the volume usage service plan imposes anti-
consumer rates, terms, or conditions that reflect insufficient
competition in the local market for broadband Internet
services; or
(8) whether the volume usage service plan fails to comply
with such other factors as the Commission, in consultation with
the Federal Communications Commission, determines to be
appropriate as set forth in the rules prescribed under section
5.
(d) Hearings.--As a component of its review of each plan submitted
under subsection (a), the Commission shall, after the provider
submitting such plan has had an opportunity to take steps under
subsection (b) to correct any violations identified by the Commission
in its notice to the provider under such subsection, provide for the
conduct of a public hearing by a Commissioner or other designated
employee of the Commission, and for the collection of public comment
and testimony with respect to such plan. Such hearing shall be
conducted in a such a community or communities in such State or States
as the Commission determines are most directly affected by the volume
usage service plan.
(e) Civil Penalties.--
(1) Notwithstanding the penalties set forth under the
Federal Trade Commission Act, any major broadband Internet
service provider who violates section 3(a) shall be subject to
injunctive relief requiring the broadband Internet service
provider proposing or offering such plan to suspend, terminate,
or revise such plan.
(2) In addition to injunctive relief, any major broadband
Internet service provider who violates section 3(a) may be
subject to a fine of not more than $1,000,000, as the
Commission determines is required to ensure ongoing compliance
with this Act.
SEC. 5. COMMISSION RULEMAKING REQUIRED.
Within 180 days after the date of enactment of this Act, the
Commission shall, by rule prescribed in accordance with section 553 of
title 5, United States Code, establish procedures for the review of
volume usage service plans and for the conduct of public hearings
pursuant to the requirements of this Act.
SEC. 6. EFFECT ON OTHER LAWS.
Nothing in this Act shall be construed to limit the authority of
the Commission to bring enforcement actions or take other measures
under the Federal Trade Commission Act or any other provision of law.
SEC. 7. DEFINITIONS.
(a) In General.--For purposes of this Act:
(1) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(2) Broadband internet service.--The term ``broadband
Internet service'' means an Internet protocol-based
transmission service that enables users to send and receive
voice, video, data, graphics, or a combination thereof.
(3) Broadband internet service provider.--The term
``broadband Internet service provider'' means any person who
provides or offers to provide broadband Internet service,
either directly or through an affiliate.
(4) Major broadband internet service provider.--The term
``major broadband Internet service provider'' means a broadband
Internet service provider that, either directly or through an
affiliate, provides broadband Internet service to 2,000,000 or
more subscribers, as further defined by the rules prescribed by
the Commission pursuant to section 5.
(5) Volume usage service plan.--The term ``volume usage
service plan'' means any choice of broadband Internet service
offerings to a residential consumer that includes two or more
different sets of rates, terms, or conditions that are directly
or indirectly based upon the amount of data actually
transmitted to or from the consumer within a fixed period of
time.
(6) Residential consumer.--The term ``residential
consumer'' includes any individual consumer who subscribes to
broadband Internet services primarily for purposes other than a
for-profit business purpose, and includes subscribers that are
nonprofit organizations or institutions of higher education.
(b) Common Terminology.--Except as otherwise provided in subsection
(a), terms used in this Act have the meanings provided under section 3
of the Communications Act of 1934 (47 U.S.C. 153) and section 602 of
such Act (47 U.S.C. 522).
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