[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 166 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 166

   To prohibit the Federal Communications Commission from regulating 
   information services or Internet access services absent a market 
                    failure, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 5, 2011

 Mr. Stearns introduced the following bill; which was referred to the 
                    Committee on Energy and Commerce

_______________________________________________________________________

                                 A BILL


 
   To prohibit the Federal Communications Commission from regulating 
   information services or Internet access services absent a market 
                    failure, and for other purposes.

    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 Investment, Innovation, and 
Competition Preservation Act''.

SEC. 2. REQUIREMENTS FOR REGULATING INFORMATION SERVICES OR INTERNET 
              ACCESS SERVICES.

    Title I of the Communications Act of 1934 (47 U.S.C. 151 et seq.) 
is amended by adding at the end the following:

``SEC. 12. REQUIREMENTS FOR REGULATING INFORMATION SERVICES OR INTERNET 
              ACCESS SERVICES.

    ``(a) Market and Cost-Benefit Analysis Required.--
            ``(1) In general.--To the extent that the Commission has 
        the authority to regulate the rates, terms, conditions, 
        provisioning, or use of an information service or an Internet 
        access service, the Commission shall not regulate such rates, 
        terms, conditions, provisioning, or use unless--
                    ``(A) the Commission first transmits a report to 
                Congress concluding that--
                            ``(i) there is a market failure in the 
                        provision of such information service or 
                        Internet access service;
                            ``(ii) there is substantial evidence that 
                        the market failure is causing specific, 
                        identified harm to consumers by preventing a 
                        substantial number of consumers nationwide from 
                        accessing a substantial amount of lawful 
                        Internet content, applications, and services of 
                        their choice on a continuing basis; and
                            ``(iii) regulations are necessary to 
                        ameliorate the specific, identified harm to 
                        consumers resulting from the market failure;
                    ``(B) in a notice of proposed rulemaking commenced 
                after the transmission of such report, the Commission--
                            ``(i) proposes the specific text of the 
                        regulation to be adopted to ameliorate such 
                        specific, identified harm to consumers;
                            ``(ii) conducts a cost-benefit analysis 
                        determining that the benefit of such regulation 
                        exceeds its costs; and
                            ``(iii) explains how imposing such 
                        regulation would not hinder ubiquitous 
                        broadband availability consistent with the 
                        national broadband plan that section 6001(k) of 
                        the American Recovery and Reinvestment Act of 
                        2009 (Public Law 111-5) requires the Commission 
                        to issue;
                    ``(C) in an order issued after such notice of 
                proposed rulemaking, the Commission publishes in the 
                Federal Register the specific language of a rule 
                codifying such regulation; and
                    ``(D) the Commission complies with the transparency 
                requirements under subsection (d).
            ``(2) Consideration.--In conducting the cost-benefit 
        analysis under paragraph (1)(B)(ii), the Commission shall 
        consider the impacts of the regulation, including--
                    ``(A) any cost of enforcement;
                    ``(B) any disincentive to investment;
                    ``(C) any detriment to innovation;
                    ``(D) any harm to competition, such as to the 
                ability of providers of content, services, or 
                applications to differentiate their content, services, 
                or applications based on quality, offerings, or other 
                factors; and
                    ``(E) any harm to efficiency, such as restricting 
                the ability of broadband network providers, service 
                providers, application providers, or content providers 
                to optimize their offering.
            ``(3) Required findings.--The Commission, in making the 
        determination under paragraph (1)(A) and in conducting the 
        cost-benefit analysis under paragraph (1)(B)(ii), shall--
                    ``(A) define the relevant product market;
                    ``(B) determine whether any entity has market power 
                in the relevant product market, taking into account 
                competition among and between broadband network 
                providers (including such providers using wireline, 
                cable, wireless, satellite, and broadband over power 
                line technologies), service providers, application 
                providers, and content providers;
                    ``(C) conduct an economic analysis of whether any 
                such entity has the incentive and ability to exercise 
                such market power in a way that harms consumers and 
                that such entity could continue to profitably exercise 
                that market power; and
                    ``(D) consider--
                            ``(i) the available data on broadband 
                        availability, including the broadband maps and 
                        other information generated pursuant to the 
                        Broadband Data Improvement Act (Public Law 110-
                        385) and the American Recovery and Reinvestment 
                        Act of 2009 (Public Law 111-5);
                            ``(ii) the impact of the broadband stimulus 
                        loans and grants issued pursuant to the 
                        American Recovery and Reinvestment Act of 2009;
                            ``(iii) the availability of access to the 
                        information service or Internet access service 
                        from 1 or more sources; and
                            ``(iv) the ease of entry into the relevant 
                        product market.
    ``(b) Least Restrictive Regulation Required; Network Management 
Permitted.--If the Commission decides to regulate the rates, terms, 
conditions, provisioning, or use of an information service or Internet 
access service after meeting its obligation under subsection (a), the 
Commission shall adopt a regulation that--
            ``(1) shall be the least restrictive necessary to address 
        the market failure and specific harm to consumers identified 
        under such subsection; and
            ``(2) shall not prohibit managed services, network 
        management to address congestion and quality of service, or 
        measures designed to prevent or deter unauthorized or illegal 
        activity, including copyright infringement.
    ``(c) Periodic Re-Evaluation Required.--
            ``(1) In general.--If the Commission regulates the rates, 
        terms, conditions, provisioning, or use of an information 
        service or Internet access service, the Commission shall 
        complete a proceeding in which the Commission shall reexamine 
        the regulation and shall determine whether--
                    ``(A) the market failure identified in the report 
                under subsection (a)(1)(A) still exists;
                    ``(B) the regulation is effectively ameliorating 
                the specific harm to consumers identified in such 
                report;
                    ``(C) absent continuation of such regulation, such 
                specific, identified harm to consumers will return; and
                    ``(D) the benefit of such regulation continues to 
                exceed its costs.
            ``(2) Deadline.--The Commission shall complete a proceeding 
        under paragraph (1) by the date that is 2 years after the 
        effective date of the regulation and not less than every 2 
        years thereafter for as long as such regulation remains in 
        effect.
            ``(3) Sunset.--Any regulation adopted pursuant to this 
        section shall be deemed to be repealed if the Commission fails 
        to determine that all of the conditions in subparagraphs (A) 
        through (D) of paragraph (1) still exist within the proceeding 
        deadline under paragraph (2).
    ``(d) Transparency Required.--The Commission shall not regulate the 
rates, terms, conditions, provisioning, or use of an information 
service or Internet access service unless the Commission complies with 
the following:
            ``(1) Before transmitting a final report to Congress under 
        subsection (a)(1)(A), the Commission shall commence a notice of 
        inquiry to examine the issues required to be addressed in such 
        report and provide--
                    ``(A) notice and an opportunity for comment on such 
                notice of inquiry to the public for a period of at 
                least 30 days;
                    ``(B) public access to comments received under 
                subparagraph (A) on the Commission's Web site and a 
                period of at least 30 days for replies to such 
                comments;
                    ``(C) to all Commissioners not less than 30 days 
                after the receipt of such replies under subparagraph 
                (B) to consider the record before the Commission 
                provides a draft of the report required under 
                subsection (a)(1)(A) to all Commissioners; and
                    ``(D) at least 30 days to all Commissioners to 
                consider such draft report before the deadline for a 
                vote.
            ``(2) Before issuing an order under subsection (a)(1)(C), 
        the Commission shall provide--
                    ``(A) notice and an opportunity for comment to the 
                public for a period of at least 30 days on the notice 
                of proposed rulemaking required under subsection 
                (a)(1)(B);
                    ``(B) public access to comments received under 
                subparagraph (A) on the Commission's Web site and a 
                period of at least 30 days for replies to such 
                comments;
                    ``(C) to all Commissioners, not less than 30 days 
                after the receipt of such replies under subparagraph 
                (B), a draft of the order to be issued pursuant to the 
                notice of proposed rulemaking; and
                    ``(D) at least 30 days to Commissioners to consider 
                such draft before the deadline for a vote.
            ``(3) Before completing the proceeding required under 
        subsection (c), the Commission shall provide--
                    ``(A) notice and an opportunity for comment to the 
                public for a period of at least 30 days on the 
                determinations made under the proceeding required by 
                such subsection;
                    ``(B) public access to comments received under 
                subparagraph (A) on the Commission's Web site and a 
                period of at least 30 days for replies to such 
                comments;
                    ``(C) to all Commissioners, not less than 30 days 
                after the receipt of such replies under subparagraph 
                (B), a draft of such determinations; and
                    ``(D) at least 30 days to Commissioners to consider 
                such draft before the deadline for a vote.
    ``(e) Neutral Network Neutrality.--The Commission shall apply and 
enforce any regulation governing the rates, terms, conditions, 
provisioning, or use of an information service (including any 
transmission component of an information service whether or not the 
transmission component is offered for a fee directly to the public or 
to such class of users as to be effectively available directly to the 
public regardless of the facilities used) or an Internet access service 
on a nondiscriminatory basis between and among broadband network 
providers, service providers, application providers, and content 
providers.
    ``(f) Enforcement.--If the Commission regulates the rates, terms, 
conditions, provisioning, or use of an information service or an 
Internet access service, such regulation may only be enforced against 
an entity if the Commission determines, pursuant to a complaint filed 
by a consumer, that the entity has engaged in conduct in violation of 
that regulation and such conduct caused a specific and substantial harm 
to that consumer.
    ``(g) Rules of Construction.--Nothing in this section shall be 
construed to--
            ``(1) grant the Commission the authority to regulate 
        information services or Internet access services;
            ``(2) supersede, repeal, or negate any regulations 
        regarding information services or Internet access services that 
        were in effect on January 1, 2010, including any regulations 
        established pursuant to the Communications Assistance for Law 
        Enforcement Act (Public Law 103-414);
            ``(3) prohibit the Commission from adopting any regulation 
        it deems necessary to prevent damage to national security or 
        public safety or to assist or facilitate any actions taken by a 
        Federal or State law enforcement agency; or
            ``(4) mean that an Internet access service is not an 
        information service.''.
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