[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3624 Introduced in Senate (IS)]

111th CONGRESS
  2nd Session
                                S. 3624

  To encourage continued investment and innovation in communications 
 networks by establishing a new, competition analysis-based regulatory 
          framework for the Federal Communications Commission.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 21, 2010

Mr. DeMint (for himself, Mr. Hatch, Mr. Ensign, Mr. Thune, Mr. Coburn, 
Mr. Cornyn, and Mr. Sessions) introduced the following bill; which was 
  read twice and referred to the Committee on Commerce, Science, and 
                             Transportation

_______________________________________________________________________

                                 A BILL


 
  To encourage continued investment and innovation in communications 
 networks by establishing a new, competition analysis-based regulatory 
          framework for the Federal Communications Commission.

    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 ``Freedom For Consumer Choice Act''.

SEC. 2. DEFINITIONS.

    (a) In General.--In this Act, the following definitions shall 
apply:
            (1) Antitrust laws.--The term ``antitrust laws'' includes--
                    (A) the Act entitled ``An Act to protect trade and 
                commerce against unlawful restraints and monopolies'', 
                approved July 2, 1890;
                    (B) sections 73 through 76 of an Act entitled ``An 
                Act to reduce taxation, to provide revenue for the 
                Government, and for other purposes'', approved August 
                27, 1894;
                    (C) the Act entitled ``An Act to amend sections 73 
                and 76 of the Act of August 27, 1894, entitled An Act 
                to reduce taxation, to provide revenue for the 
                Government, and for other purposes'', approved February 
                12, 1913; and
                    (D) the Act entitled ``An Act to supplement 
                existing laws against unlawful restraints and 
                monopolies, and for other purposes'', approved October 
                15, 1914.
            (2) Commission.--The term ``Commission'' means the Federal 
        Communications Commission.
            (3) Electronic communications network.--The term 
        ``electronic communications network'' means--
                    (A) a transmission system; and
                    (B) where applicable, switching or routing 
                equipment and other facilities which permit the 
                conveyance of signals by wire, radio, optical, or other 
                electromagnetic means, over satellite, cable, or other 
                facilities, whether fixed or mobile, to the extent that 
                such facilities are used for the purpose of 
                transmitting signals, irrespective of the type of 
                information conveyed.
            (4) Electronic communications service.--The term 
        ``electronic communications service'' means a service normally 
        provided for remuneration which consists wholly or mainly in 
        the conveyance of signals on electronic communications 
        networks.
            (5) Unfair methods of competition.--
                    (A) In general.--The term ``unfair methods of 
                competition'' means--
                            (i) practices that present a threat of 
                        abuse of significant and nontransitory market 
                        power as determined by the Commission 
                        consistent with the application of 
                        jurisprudential principles grounded in market-
                        oriented competition analysis such as those 
                        commonly employed by the Federal Trade 
                        Commission and the United States Department of 
                        Justice in enforcing the Federal Trade 
                        Commission Act (15 U.S.C. 41 et seq.) and the 
                        antitrust laws of the United States; and
                            (ii) with respect to interconnection, 
                        practices that pose a substantial and 
                        nontransitory risk to consumer welfare by 
                        materially and substantially impeding the 
                        interconnection of public communications 
                        facilities and services in circumstances in 
                        which the Commission determines that 
                        marketplace competition is not sufficient to 
                        adequately protect consumer welfare.
                    (B) Interconnection determination.--In making any 
                determination under subparagraph (A)(ii), the 
                Commission shall consider whether requiring 
                interconnection will adversely affect investment in 
                facilities and innovation in services.
    (b) Common Terminology.--Except as otherwise provided in subsection 
(a), terms used in this Act shall have the same meaning given to such 
terms under sections 3, 254, and 602 of the Communications Act of 1934 
(47 U.S.C. 153, 254, and 522).

SEC. 3. FINDINGS AND POLICY.

    (a) Findings.--Congress finds that--
            (1) in 1996, Congress enacted and the President signed into 
        law the Telecommunications Act of 1996, which was intended to 
        provide a procompetitive, deregulatory framework designed to 
        facilitate the continuing transition to a more competitive 
        communications market;
            (2) since the enactment and implementation of the 
        Telecommunications Act of 1996, rapid advances in technology 
        and marketplace developments have further increased the 
        existence of competition in all communications markets and the 
        likelihood of the continuing existence and increasing intensity 
        of competition;
            (3) competition in a dynamic communications marketplace is 
        the most effective and efficient means for protecting consumers 
        and enhancing the consumer welfare of all the people of the 
        United States in terms of achieving the optimum mix of price, 
        quality, and consumer choice; and
            (4) unnecessary regulation regarding protection of 
        consumers and enhancement of consumer welfare deters--
                    (A) investment in new and advanced communications 
                facilities; and
                    (B) the development of new services and 
                applications.
    (b) Policy.--It shall be the policy of the United States 
Government--
            (1) to promote the widespread availability of 
        communications services for all Americans in order to assure 
        that the American people have access to a diversity of 
        information sources necessary for democratic government;
            (2) to promote the integrity, reliability, and efficiency 
        of communications facilities in a manner consistent with--
                    (A) the encouragement of investment in advanced 
                communications networks; and
                    (B) innovation in communications services and 
                applications;
            (3) that economic regulation of communications markets 
        should be presumed unnecessary absent circumstances that 
        demonstrate the existence of a significant threat of abuse of 
        market power that poses a substantial and nontransitory risk to 
        consumer welfare; and
            (4) that in order to ensure that the actions of the Federal 
        Communications Commission are consistent with the findings in 
        subsection (a), and to effectuate the deregulatory policy 
        declared in this subsection, the decisions of the Commission 
        should be based on jurisprudential principles grounded in 
        market-oriented competition analysis such as those commonly 
        employed by the Federal Trade Commission and the Department of 
        Justice in enforcing the Federal Trade Commission Act (15 
        U.S.C. 41 et seq.) and the antitrust laws of the United States.

SEC. 4. PROHIBITION OF UNFAIR METHODS OF COMPETITION.

    (a) In General.--It shall be unlawful for any provider of 
electronic communications service, including any State, or any general 
purpose political subdivision of a State, to engage or participate, or 
to attempt to engage or participate, in--
            (1) unfair methods of competition in or affecting 
        electronic communications networks and electronic 
        communications services; or
            (2) unfair or deceptive practices in or affecting 
        electronic communications networks and electronic 
        communications services.
    (b) Rulemaking Authority.--
            (1) In general.--The Commission may, by rule, define with 
        specificity, the acts or practices that shall constitute unfair 
        methods of competition or unfair or deceptive acts or practices 
        as described in subsection (a).
            (2) Content of rules.--Rules promulgated under paragraph 
        (1) may include such requirements as the Commission determines 
        necessary to prevent any methods, acts, or practices prohibited 
        by this section.
            (3) Limitation.--
                    (A) In general.--Notwithstanding paragraph (1) and 
                except as provided in subparagraph (B), the Commission 
                shall have no authority to issue rules that declare 
                unlawful an act or practice on the grounds that such 
                act or practice is an unfair method of competition or 
                unfair or deceptive act or practice.
                    (B) Exception.--The Commission may declare an act 
                or practice unlawful if the Commission determines, 
                based on a showing of clear and convincing evidence 
                presented in a rulemaking proceeding, that--
                            (i) marketplace competition is not 
                        sufficient to adequately protect consumer 
                        welfare; and
                            (ii) such act or practice--
                                    (I) causes or is likely to cause 
                                substantial injury to consumers; and
                                    (II) is not--
                                            (aa) avoidable by consumers 
                                        themselves; and
                                            (bb) outweighed by 
                                        countervailing benefits to 
                                        consumers or to competition.
            (4) Sunset of rules.--Any rule promulgated under paragraph 
        (1) shall terminate on the day that is 5 years after the date 
        on which such rule became effective unless the Commission, in a 
        proceeding in which the public is afforded notice and an 
        opportunity to comment, makes an affirmative determination, 
        based on a showing of clear and convincing evidence presented 
        in such proceeding, that the rule continues to be necessary 
        because marketplace competition is not sufficient to adequately 
        protect consumers from substantial injury which is not--
                    (A) avoidable by consumers themselves; and
                    (B) outweighed by countervailing benefits to 
                consumers or to competition.

SEC. 5. ACTIONS FOR COMPLAINTS.

    The Commission shall have authority--
            (1) to hear complaints from any party injured by a 
        violation of the prohibitions established under section 4; and
            (2) to award damages to such injured party if the 
        Commission determines that a violation of that section has 
        occurred.

SEC. 6. TIME LIMITS ON COMMISSION ACTION.

    (a) 120-Day Limit for Applications With Supporting Testimony.--If 
an application is filed with the Commission under this or any other 
Act, and such application is accompanied by supporting testimony from 
the applicant or a detailed summary of that testimony, together with 
exhibits, if any, the Commission shall issue a decision on such 
application not later than 120 days after the application is deemed 
complete (as the Commission shall, by rule, determine).
    (b) 210-Day Limit for Applications Without Supporting Testimony.--
If an application is filed with the Commission under this or any other 
Act, and such application is not accompanied by supporting testimony 
and exhibits, the Commission shall issue a decision on such application 
not later than 210 days after the application is deemed complete (as 
the Commission shall, by rule, determine).
    (c) Waiver.--The time limits specified in subsections (a) and (b)--
            (1) may be waived by an applicant; and
            (2) if so waived, shall not be binding on the Commission.
    (d) Extension of Time.--The Commission, in particular cases, under 
extraordinary conditions, and after notice and a hearing at which the 
existence of such conditions are established, may extend the time 
limits specified in subsections (a) and (b) for a period not to exceed 
an additional 90 days.

SEC. 7. ADDITIONAL POWERS OF THE COMMISSION.

    The Commission shall have authority--
            (1) to research and investigate, from time to time, the 
        organization, business, conduct, or practices of--
                    (A) any person or entity engaged in, or whose 
                business affects, the operation of electronic 
                communications networks; and
                    (B) any provider of electronic communications 
                service;
            (2) to require any person or entity that owns or operates 
        an electronic communications networks, or any class of such 
        persons or entities, to file, in such form, in such manner, and 
        at such time as the Commission may determine, reports or 
        answers to specific questions regarding the organization, 
        business, conduct, or practices of such person or entity, such 
        reports or answers shall be in writing and made under penalty 
        of perjury;
            (3) to make public, from time to time, in such form, and in 
        such manner as the Commission determines--
                    (A) such portions of the information obtained under 
                paragraph (1) as are in the public interest; and
                    (B) the reports and answers described under 
                paragraph (2), except that the Commission--
                            (i) may not make public any trade secret or 
                        any privileged or confidential commercial or 
                        financial information obtained from such 
                        reports or answers; and
                            (ii) may disclose such trade secrets or 
                        information to officers and employees of an 
                        appropriate Federal or State law enforcement 
                        agency upon prior certification by an officer 
                        of that Federal or State law enforcement agency 
                        that such trade secrets or information shall--
                                    (I) be maintained in confidence; 
                                and
                                    (II) be used only for official law 
                                enforcement purposes; and
            (4) to make annual and special reports to Congress and to 
        submit with such reports recommendations for additional 
        legislation.
                                 <all>