Short title

This Act may be cited as the

Freedom For Consumer Choice Act

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).

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.

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.

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.

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.

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.