[Congressional Record Volume 152, Number 25 (Thursday, March 2, 2006)]
[Senate]
[Pages S1652-S1653]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. WYDEN:
  S. 2360. A bill to ensure and promote a free and open Internet for 
all Americans; to the Committee on Commerce, Science, and 
Transportation.
  Mr. WYDEN. Mr. President, a headline in today's Wall Street Journal 
warns consumers that they will soon face a ``pay to play'' Internet 
where those businesses and consumers who want to continue to see equal 
content get equal treatment will have to pay more. Rather than let them 
continue to have the freedom to choose whatever content, applications 
and services they want, the big network operators want to control the 
content consumers can access. Allowing the big network operators to 
discriminate on the Net is bad news for consumers, small businesses, 
schools, libraries, nonprofits and any other user who enjoys their 
freedom of access.
  That is why today I am proposing legislation that will codify the 
principle of network neutrality. I want consumers, small businesses and 
every other Internet user to continue to enjoy tomorrow the full array 
of content, service and applications they enjoy today.
  My legislation, the Internet Non-Discrimination Act of 2006, will 
establish the principle of network neutrality by requiring the 
operators of the network to treat all content on the Internet equally. 
It will ensure transparency so that everyone can easily determine all 
rates, terms and conditions for the provision of any communications. 
Transparency coupled with a complaint process before the Federal 
Communications Commission will encourage compliance.
  This legislation has been developed in consultation with a number of 
consumer groups and businesses, and I ask unanimous consent the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2360

       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 Non-Discrimination 
     Act of 2006''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Since passage of the Telecommunications Act of 1996, 
     the Internet has grown robustly. Today, Americans are 
     changing how they access the Internet, moving from dial-up to 
     broadband for their home connections. According to the Pew 
     Internet and American Life Project, 72 percent of Americans 
     use the Internet and 59 percent of Americans with home 
     Internet have a high-speed Internet connection.
       (2) Americans use the Internet for many daily activities. 
     Over 17 percent of Americans have sold something over the 
     Internet. Everyday, approximately 60,000,000 Americans use 
     search engines to get access to information. 80 percent of 
     Americans have looked online for health care information. In 
     growing numbers, Americans are using the Internet to place 
     phone calls, watch their favorite televisions shows or 
     movies, and play games.
       (3) The growth of the Internet and its success are due in 
     large part to the freedom that has always existed on the 
     content and applications layer of the Internet. Innovation 
     has thrived on this layer, as anyone with a good idea has the 
     ability to access consumers. The continuation of this freedom 
     is essential for future innovation.
       (4) Freedom on the content and applications layer has also 
     led to robust competition for retail goods for consumers. 
     Consumers can shop at thousands upon thousands of retailers 
     from their home computers, including small businesses located 
     miles away in other towns, States, and even countries.
       (5) Such freedom is leading to the development of important 
     new entertainment offerings, on-demand video and movie 
     purchases, Internet Protocol television, and enhanced gaming 
     options. The entertainment options available in the future 
     will only be limited by the bandwidth that can be used and 
     the innovation of people all over the world.
       (6) Despite the growth of the Internet and increased access 
     to the Internet for Americans, there is very little choice in 
     who provides them high-speed Internet access. According to an 
     April 2005 White Paper by Harold Feld and Gregory Rose, et. 
     al., entitled, ``Connecting the Public: The Truth About 
     Municipal Broadband'' only 2 percent of Americans get high-
     speed Internet access from someone other than their local 
     phone company or cable provider. According to the Federal 
     Communications Commission, approximately 20 percent of 
     Americans do not have a high-speed Internet access provider 
     that offers them service.
       (7) As more and more Americans get high-speed access to the 
     Internet without having much choice of who their provider 
     will be, it is important that Congress protect the freedom on 
     the Internet to ensure its continued success.

     SEC. 3. DEFINITIONS.

       In this Act, the following definitions shall apply:
       (1) Application or service.--The term ``application or 
     service'' means any information or service--
       (A) by which an end-user through software or a device 
     engages in an exchange of data or information; and
       (B) conveyed over communications.
       (2) Bits.--The term ``bits'' or ``binary digits'' means the 
     smallest unit of information in which form data is 
     transported on the Internet as a single digit number in base-
     2.
       (3) Commission.--The term ``Commission'' means the Federal 
     Communications Commission.
       (4) Communications.--The term ``communications''--
       (A) means any voice, video, or data application or service, 
     regardless of the facilities or technology used, that--
       (i) is a transmission to subscribers by use of--

       (I) the public rights-of-way;
       (II) spectrum;
       (III) numbering or addressing resources; or
       (IV) other inputs licensed or managed by a unit of local 
     government, or a private entity working in concert with such 
     unit of local government, for the benefit of the public;

       (ii) is offered to the public, or as to such classes of 
     subscribers as to be effectively available directly to the 
     public, with or without a fee; and
       (iii) enables an end user, as part of such service, to 
     transmit content of their own design or choosing between or 
     among points specified by such user;
       (B) includes interactive on-demand services, as such term 
     is defined in section 602(12) of the Communications Act of 
     1934 (47 U.S.C. 522(12)); and
       (C) does not include cable service, as such term is defined 
     in section 602(6) of the Communications Act of 1934 (47 
     U.S.C. 522(6)).
       (5) Content.--The term ``content'' means information--
       (A) in the form of writing, signs, signals, pictures, and 
     sounds of all kinds, including stored information requested 
     by an end user; and
       (B) that is generated based on the input or request of such 
     user.
       (6) Person.--The term ``person'' means any natural person, 
     partnership, firm, association, corporation, limited 
     liability company, or other legal entity.
       (7) Network operator.--
       (A) In general.--The term ``network operator'' means any 
     person who owns, operates, controls, or resells and controls 
     any facility that provides communications directly to a 
     subscriber.
       (B) Obligations.--Any obligation imposed on a network 
     operator by the provisions of this Act shall apply only to 
     the extent that such network operator is engaged in providing 
     communications.
       (8) Subscriber.--The term ``subscriber'' means any person 
     who--
       (A) is an end user of an application or service provided 
     through communications; and
       (B) consumes or provides goods provided through such 
     application or service.
       (9) Transmission component.--The term ``transmission 
     component'' means the portion of communications which enables 
     an end user to transmit content of their own design and 
     choosing between or among points specified by such user.

     SEC. 4. OBLIGATIONS OF NETWORK OPERATORS.

       (a) In General.--A network operator shall--
       (1) not interfere with, block, degrade, alter, modify, 
     impair, or change any bits, content, application or service 
     transmitted over the network of such operator;
       (2) not discriminate in favor of itself or any other 
     person, including any affiliate or company with which such 
     operator has a business relationship in--
       (A) allocating bandwidth; and
       (B) transmitting content or applications or services to or 
     from a subscriber in the provision of a communications;
       (3) not assess a charge to any application or service 
     provider not on the network of such operator for the delivery 
     of traffic to any subscriber to the network of such operator;
       (4) offer communications such that a subscriber can access, 
     and a content provider can offer, unaffiliated content or 
     applications or services in the same manner that content of 
     the network operator is accessed and offered, without 
     interference or surcharges;
       (5) allow the attachment of any device, if such device is 
     in compliance with part 68 of title 47, Code of Federal 
     Regulations, without restricting any application or service 
     that may be offered or provided using such a device;
       (6) treat all data traveling over or on communications in a 
     non-discriminatory way;
       (7) offer just, reasonable, and non-discriminatory rates, 
     terms, and conditions on the offering or provision of any 
     service by another person using the transmission component of 
     communications;
       (8) provide non-discriminatory access and service to each 
     subscriber; and
       (9) post and make available for public inspection, in 
     electronic form and in a manner that is transparent and 
     easily understandable, all rates, terms, and conditions for 
     the provision of any communications.

[[Page S1653]]

       (b) Preserved Authority of Network Operators.--
     Notwithstanding the requirements described in subsection (a), 
     a network operator--
       (1) may--
       (A) take reasonable and non-discriminatory measures to 
     protect subscribers from adware, spyware, malware, viruses, 
     spam, pornography, content deemed inappropriate for minors, 
     or any other similarly nefarious application or service that 
     harms the Internet experience of subscribers, if such 
     subscribers--
       (i) are informed of the application or service; and
       (ii) are given the opportunity to refuse or disable any 
     such preventative application or service;
       (B) support an application or service intended to prevent 
     adware, spyware, malware, viruses, spam, pornography, content 
     deemed inappropriate for minors, or any other similarly 
     nefarious application or service that harms the Internet 
     experience of subscribers, if such subscribers--
       (i) are informed of the application or service; and
       (ii) are given the opportunity to refuse or disable any 
     such preventative application or service; and
       (C) take reasonable and non-discriminatory measures to 
     protect the security of the network of such operator, if such 
     operator faces serious and irreparable harm; and
       (2) shall--
       (A) give priority to an emergency communication;
       (B) comply with any court-ordered law enforcement 
     directive; and
       (C) prevent any activity that is unlawful or illegal under 
     any Federal, State, or local law.

     SEC. 5. COMPLAINTS REGARDING VIOLATIONS.

       (a) Complaint.--Any aggrieved party may submit a written 
     complaint to the Commission seeking a ruling that a network 
     operator has violated a requirement described in section 
     4(a).
       (b) Content of Complaint.--In any complaint submitted under 
     subsection (a) an aggrieved party shall make a prima facie 
     case that--
       (1) a network operator violated a requirement of section 
     4(a);
       (2) such violation was not a preserved authority described 
     in subparagraph (A) or (B) of section 4(b)(1); and
       (3) such violation is harmful to such party.
       (c) 7-Day Acceptance Period.--Not later than 7 days after 
     the date of the submission of a complaint under subsection 
     (a), the Commission shall issue a decision regarding its 
     acceptance or denial of the prima facie case made by an 
     aggrieved party.
       (d) Cease and Desist.--
       (1) In general.--If the Commission accepts the prima facie 
     case of an aggrieved party under subsection (c), a network 
     operator shall be required to cease and desist the action 
     that is the underlying basis of the complaint for the 
     duration of the proceeding on such complaint, until such time 
     as the Commission may rule that a violation of a requirement 
     of section 4(a) has not occurred.
       (2) Authority to extend cease and desist order.--The 
     Commission shall have the authority to extend any cease and 
     desist order to any similarly situated person as the 
     Commission determines necessary and appropriate.
       (e) Burden of Proof.--If the Commission accepts the prima 
     facie case of an aggrieved party under subsection (c), a 
     network operator shall bear the burden of proving that--
       (1) no violation of section 4(a) occurred; or
       (2) such violation was a preserved authority described in 
     section 4(b).
       (f) Final Decision.--
       (1) 90-day period.--Not later than 90 days after the date 
     of the submission of a complaint under subsection (a), the 
     Commission shall issue a final decision regarding the request 
     for a ruling contained in such complaint.
       (2) Failure to issue decision.--If the Commission fails to 
     issue a decision at the expiration of the 90-day period 
     described in paragraph (1), a violation of a requirement of 
     section 4(a) shall be deemed to have occurred.
       (g) Rules of Construction.--
       (1) Delegation.--
       (A) In general.--Nothing in this section shall be 
     construed--
       (i) to prevent the Commission from delegating any authority 
     granted to it under this section to a relevant office or 
     bureau pursuant to the authority granted the Commission under 
     section 5(c) of the Communications Act of 1934 (47 U.S.C. 
     155(c)); or
       (ii) to limit the Commission from adopting any appropriate 
     procedures pursuant to any other provision of law.
       (B) Limitation.--The rule established under subparagraph 
     (A) shall only apply if at the expiration of the 90-day 
     period described in subsection (f)(1)--
       (i) the Commission issues a final decision that is ripe for 
     judicial review; or
       (ii) a violation of a requirement of section 4(a) shall be 
     deemed to have occurred under subsection (f)(2).
       (2) Petition for reconsideration.--
       (A) In general.--Nothing in this section shall be construed 
     to affect the ability of any eligible party to file a 
     petition for reconsideration under section 405 of the 
     Communications Act of 1934 (47 U.S.C. 405).
       (B) Timing.--
       (i) 90-day period.--Not later than 90 days after the date 
     of the submission of a petition for reconsideration under 
     section 405 of the Communications Act of 1934 (47 U.S.C. 
     405), the Commission shall issue an order granting or denying 
     such petition.
       (ii) Failure to issue an order.--If the Commission fails to 
     issue a decision at the expiration of the 90-day period 
     described in clause (i), the previous decision of the 
     Commission shall be considered affirmed and final for 
     purposes of judicial review.
       (3) Judicial review.--Notwithstanding section 402(b) of the 
     Communications Act of 1934 (47 U.S.C. 402(b)) and any other 
     provision of law, any appeal of a decision of the Commission 
     under this section shall be made to United States district 
     court for the district in which the principle place of 
     business of the aggrieved party is located.
       (4) Intervention by third parties.--Nothing in this section 
     shall be construed to prevent any interested person from 
     intervening in any appeal of a decision of the Commission in 
     accordance with section 402(e) of the Communications Act of 
     1934 (47 U.S.C. 402(e)).

     SEC. 6. PENALTIES.

       (a) In General.--If the Commission issues a ruling under 
     section 5 that a network operator is in violation of a 
     requirement of section 4(a), such network operator shall be 
     subject to the penalties prescribed under section 501 of the 
     Communications Act of 1934 (47 U.S.C. 501).
       (b) Separate Violations.--Each violation of a requirement 
     of section 4(a) shall be treated as a separate incident for 
     purposes of imposing penalties under subsection (a).
                                 ______