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:

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.