[Congressional Record Volume 159, Number 160 (Tuesday, November 12, 2013)]
[Senate]
[Pages S7953-S7962]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. ROCKEFELLER:
  S. 1680. A bill to amend the Communications Act of 1934 to increase 
consumer choice and competition in the online video programming 
distribution marketplace, and for other purposes; to the Committee on 
Commerce, Science, and Transportation.
  Mr. ROCKEFELLER. Mr. President, two decades ago, Congress passed the 
Cable Television and Consumer Protection Act of 1992 in part to stop 
cable companies from leveraging their market power to block competition 
from satellite television providers. Congress did so with the 
realization that market forces alone did not act to create true 
competition in video services, mainly because the entrenched interests 
held dominant control over the content necessary for new services to 
compete effectively. As a result, regulation in the name of competition 
was necessary to empower consumers and facilitate the development of 
new innovative video services. Twenty years later, DirecTV and Dish 
Network have become the second and third largest pay TV providers in 
the Nation, respectively.
  The legislation that I am introducing today, the Consumer Choice in 
Online Video Act, builds upon the legacy, and the promise, of the 1992 
Cable Act. More needs to be done.
  Simply put, the video marketplace today, even with a variety of cable 
and satellite television providers, still is one of ever-escalating 
rates and of limited choice in terms of programming packages. Consumers 
find themselves paying more and more each year for their pay TV 
service, and those yearly rate increases often far exceed inflation. 
Even though consumers have at their fingertips hundreds of channels of 
programming, most homes watch very few of those channels and would 
prefer to have more choice in what they pay for each month.
  We have all heard the familiar complaint that we have five hundred 
channels, but there is nothing to watch. My

[[Page S7954]]

legislation aims to enable the ultimate a la carte--to give consumers 
the ability to watch the programming they want to watch, when they want 
to watch it, how they want to watch it, and pay only for what they 
actually watch.
  Key to that goal is online video. The Internet has revolutionized 
many aspects of American life, from the economy, to health care, to 
education. It has proven to be a disruptive and transformative 
technology. It has forever changed the way Americans live their lives. 
Consumers now use the Internet, for example, to purchase airline 
tickets, to reserve rental cars and hotel rooms, to do their holiday 
shopping. The Internet gives them the ability to identify prices and 
choices and offers an endless supply of competitive offerings that 
strive to meet individual consumer's needs.
  But that type of choice, with full transparency and real competition, 
has not been fully realized in today's video marketplace. The core 
policy question is how to nurture new technologies and services, and 
make sure incumbents cannot simply perpetuate the status quo of ever-
increasing bills and limited choice through exercise of their market 
power.
  Broadband-based online video today stands at a crossroads. It 
promises to become the video delivery platform that can truly bring 
consumer-centric video services to the marketplace. Consumers clearly 
have an appetite for online video and the choice and flexibility it 
affords, and innovative companies have risen to tap into that demand. 
But their ability to fully compete and maximize the benefits of 
broadband-based online video have been compromised.
  Consumers do not really care whether they access their favorite video 
programming through a traditional cable line, fiber, satellite, or 
broadband wireless technology. What they are most frustrated by today, 
though, is that some cable or broadcast programming is sometimes not 
accessible in an ``over the top'' online format, or that their 
experience with online video is somehow degraded. And disturbing 
reports suggest that one of the reasons that the consumers have these 
experiences is due to anticompetitive activity on the part of incumbent 
media companies and broadband providers.
  As both the Federal Communications Commission, FCC, and the 
Department of Justice have noted, the nature of broadband-delivered 
video makes it uniquely susceptible to anticompetitive activity. Online 
video distributors do not own their distribution platform, and their 
viability depends on the ability to acquire sought-after programming 
from content companies on competitive terms. Yet, given their 
relationships with both content companies and Internet service 
providers, traditional cable and satellite providers have the incentive 
and ability to try to limit the growth of innovative, competitive 
online video distribution companies.
  Press reports make clear that video marketplace incumbents are using 
their market positions to limit online video companies from entering 
the market and competing on a level playing field. Incumbent media 
companies, who control both the delivery platform and the content 
necessary for a robust online video service, are putting up barriers to 
protect their current services from new competition. Other reports 
indicate that some pay-TV operators are offering incentives to media 
companies that agree to withhold content from Web-based entertainment 
services.
  My legislation would bar these and other anticompetitive practices in 
the online video marketplace, while offering regulatory parity to 
online video services that offer services similar to those presently 
provided by cable and satellite companies. It also would remedy 
lingering issues surrounding the regulatory treatment of online video 
services by the FCC. Finally, the bill would empower consumers with 
more information about their broadband Internet service, and give the 
FCC the authority to oversee the use of metered broadband Internet 
billing practices that could be used to stifle use of data-intensive 
online video services.
  I offer this legislation to begin an overdue conversation about the 
best way that Congress can protect and promote a consumer-centric 
online video marketplace. I recognize that this bill is not perfect. 
That is why I invite discussion and comments from my colleagues and 
others on ways to improve it as we move forward. While I am sure that 
we can find ways to improve this legislation, we should not stand aside 
in the name of the free market while the innovation and choice that can 
come from online video for West Virginia and around the country is 
stifled.
  It is time for Congress to act to maximize the promise of today's 
online world, and improve the consumer experience in the video 
marketplace. Consumers must be able to benefit from online video's 
promise of decreased costs for video services, more choice over the 
types of programming that their families consume, and higher-quality 
video content that educates and entertains. I strongly believe that the 
breathing room provided to online video distributors by my legislation 
is one of the keys to fostering a consumer-centric revolution in the 
video marketplace.
  Mr. President I ask unanimous consent that 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. 1680

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Consumer 
     Choice in Online Video Act''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings; statement of policy.
Sec. 3. Definitions.

                 TITLE I--BILLING FOR INTERNET SERVICE

Sec. 101. Consumer protections.

            TITLE II--ONLINE VIDEO DISTRIBUTION ALTERNATIVES

Sec. 201. Protections for online video distributors.
Sec. 202. Federal Communications Commission report on peering.

    TITLE III--NON-FACILITIES BASED MULTICHANNEL VIDEO PROGRAMMING 
                              DISTRIBUTORS

Sec. 301. Non-facilities based multichannel video programming 
              distributors.

                        TITLE IV--MISCELLANEOUS

Sec. 401. Technical and conforming amendments.
Sec. 402. Provisions as complementary.
Sec. 403. Applicability of antitrust laws.
Sec. 404. Severability.

     SEC. 2. FINDINGS; STATEMENT OF POLICY.

       (a) Findings.--Congress makes the following findings:
       (1) Online video distribution has the potential to increase 
     consumer choice in video programming, lower prices for video 
     services, bring innovative services to the video distribution 
     marketplace, and disrupt the traditional multichannel video 
     distribution marketplace.
       (2) Evolving consumer demand, improving technology, and 
     increased choice of viewing devices can make online video 
     distributors stronger competitors to multichannel video 
     programming distributors for an increasing number of viewers.
       (3) Unlike traditional multichannel video programming 
     distributors, online video distributors do not own 
     distribution facilities and are dependent upon Internet 
     service providers (many of which are affiliated with 
     multichannel video programming distributors) for the delivery 
     of their content to viewers.
       (4) Internet service providers' management and pricing of 
     broadband services affects online video distributors. Because 
     online video distribution consumes significant amounts of 
     Internet bandwidth, Internet service providers' use of usage-
     based billing practices can negatively impact the competitive 
     position of online video distributors and the appeal of their 
     services to consumers.
       (5) Internet service providers that are affiliated with a 
     multichannel video programming distributor or an online video 
     distributor have an increased incentive to degrade the 
     delivery of, or block entirely, traffic from the websites of 
     other online video distributors, or speed up or favor access 
     to the content and aggregation websites of their affiliates, 
     because online video distributors pose a threat to those 
     affiliates' video programming distribution businesses.
       (6) Similarly, multichannel video programming distributors 
     who are affiliated with Internet service providers, online 
     video distributors who are affiliated with Internet service 
     providers, or video programming vendors with significant 
     market power have the incentive and ability to use their 
     competitive position to engage in unfair methods of 
     competition meant to hinder competition from online video 
     distributors.
       (7) Growth of online video distribution alternatives also 
     will depend, in part, on the distributor's ability to acquire 
     programming from content producers. Without access to content 
     on competitive terms, an online

[[Page S7955]]

     video distributor suffers a distinct competitive harm.
       (8) Some traditional multichannel video programming 
     distributors have admitted to taking steps to limit the 
     ability of online video distributors to access content or 
     otherwise effectively compete in the video distribution 
     marketplace.
       (9) Traditional multichannel video programming distributors 
     and even other online video distributors have the incentive 
     and ability to convince their video programming vendor 
     partners not to sell content to online video distributors or 
     to sell content to them at competitively-disadvantageous 
     prices, terms, and conditions. They also have the incentive 
     and ability to retaliate against a video programming vendor 
     that sells content to an online video distributor.
       (10) Traditional multichannel video programming 
     distributors have the incentive and ability to use their 
     relationships with manufacturers of television sets, set-top 
     boxes, and other customer premises equipment to favor their 
     own services over offerings from online video distributors.
       (11) There is a substantial governmental and First 
     Amendment interest in--
       (A) requiring Internet service providers to provide 
     consumers with accurate information about their Internet 
     service, and to ensure that data usage monitoring systems are 
     accurate, effective, and not used for an anticompetitive 
     purpose;
       (B) promoting a diversity of views provided through 
     multiple technology media;
       (C) promoting the development of online video distribution 
     platforms and fair competition amongst all distributors and 
     vendors of video programming;
       (D) preventing Internet service providers that are 
     affiliated with a multichannel video programming distributor 
     or an online video distributor from discriminating against 
     unaffiliated content and distributors in its exercise of 
     control over consumers' broadband connections;
       (E) encouraging and protecting consumer choice and 
     innovation in online video distribution, including with 
     respect to distribution of broadcast television content; and
       (F) providing consumers with the ability to choose to 
     receive local broadcast television content from various 
     markets.
       (b) Statement of Policy.--It is the policy of the Congress 
     that--
       (1) consumers should be fully informed about the terms and 
     conditions related to the purchase of Internet service from 
     an Internet service provider;
       (2) usage-based billing systems used by an Internet service 
     provider should not be used in a way that harms development 
     and use of high-bandwidth consuming Internet applications and 
     services that might compete with that Internet service 
     provider's own services;
       (3) the availability of a diversity of views and 
     information should be promoted to the public through various 
     video programming distribution platforms, including those 
     providing service by utilizing the Internet or other IP-based 
     transmission paths;
       (4) existing multichannel video programming distributors 
     and video programming vendors should not have or exercise 
     undue market power with respect to online video distributors; 
     and
       (5) Internet service providers should not hinder through 
     anticompetitive behavior the ability of online video 
     distributors to provide services to their subscribers.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Broadcast television licensee.--The term ``broadcast 
     television licensee'' means the licensee of a full-power 
     television station or a low-power television station.
       (2) Commission.--The term ``Commission'' means the Federal 
     Communications Commission.
       (3) Internet service provider.--The term ``Internet service 
     provider'' means any provider of Internet service to an end 
     user, regardless of the technology used to provide that 
     service.
       (4) Non-facilities based multichannel video programming 
     distributor.--The term ``non-facilities based multichannel 
     video programming distributor'' means an online video 
     distributor that has made the election permitted under 
     section 672.
       (5) Online video distributor.--The term ``online video 
     distributor'' means any entity, including a non-facilities 
     based multichannel video programming distributor, that--
       (A) has its principal place of business in the United 
     States; and
       (B) distributes video programming in the United States by 
     means of the Internet or another IP-based transmission path 
     provided by a person other than that entity.
       (6) Television network.--The term ``television network'' 
     means a television network in the United States which offers 
     an interconnected program service on a regular basis for 15 
     or more hours per week to at least 25 affiliated broadcast 
     stations in 10 or more States.
       (7) Usage-based billing.--
       (A) In general.--The term ``usage-based billing'' means a 
     system of charging a consumer for Internet service or the use 
     of an IP-based transmission path provided by an Internet 
     service provider or other entity that is based upon the 
     amount of data the consumer uses over a period of time.
       (B) Inclusions.--The term ``usage-based billing'' 
     includes--
       (i) imposing a cap on the amount of data the consumer can 
     use based on the price the consumer is willing to pay for 
     service;
       (ii) charging a consumer varying amounts each billing cycle 
     based on a per-megabyte, per-gigabyte, or similar rate; and
       (iii) establishing different tiers of prices based on the 
     amount of data the consumer elects to consume in a billing 
     cycle, whether or not the amount acts as a cap on the 
     consumer's service.
       (8) Video programming.--The term ``video programming'' 
     means programming provided by, or generally considered 
     comparable to programming provided by, a television broadcast 
     station, whether or not such programming is delivered using a 
     portion of the electromagnetic frequency spectrum.
       (9) Video programming vendor.--The term ``video programming 
     vendor'' means a person engaged in the production, creation, 
     or wholesale distribution of video programming for sale.

                 TITLE I--BILLING FOR INTERNET SERVICE

     SEC. 101. CONSUMER PROTECTIONS.

       Title VII of the Communications Act of 1934 (47 U.S.C. 601 
     et seq.) is amended--
       (1) by inserting before section 701 the following:

                  ``PART I--GENERAL PROVISIONS''; and

       (2) by adding at the end the following:

                  ``PART II--INTERNET SERVICES BILLING

     ``SEC. 721. CONSUMER PROTECTIONS.

       ``(a) General Disclosures.--
       ``(1) In general.--Not later than 1 year after the date of 
     enactment of the Consumer Choice in Online Video Act, the 
     Commission shall promulgate regulations requiring Internet 
     service providers to disclose certain information that will 
     assist a consumer in making an informed decision about the 
     purchase of Internet service.
       ``(2) Requirements.--The regulations under paragraph (1) 
     shall require, at a minimum, that--
       ``(A) any advertising related to Internet service include 
     plain language disclosure of any information the Commission 
     considers necessary for a consumer to make an informed 
     decision about the purchase of that Internet service;
       ``(B) an Internet service provider provide a plain language 
     disclosure to a consumer prior to the purchase of Internet 
     service that includes--
       ``(i) the length of the contract;
       ``(ii) the terms of renewal;
       ``(iii) a projected monthly bill, including all fees and 
     costs associated with the Internet service;
       ``(iv) if the consumer is receiving promotional pricing for 
     service, a projected monthly bill for service once that 
     promotional pricing period has ended;
       ``(v) the procedures to cancel the Internet service, 
     including any policies related to early termination fees;
       ``(vi) the average actual data transmission speeds, 
     including both upload and download speeds;
       ``(vii) any policies or practices regarding network 
     management, including limiting service speeds or prioritizing 
     content; and
       ``(viii) any other information that the Commission 
     considers necessary for the consumer to make an informed 
     decision about the purchase of the Internet service.
       ``(b) Special Disclosures for Usage-based Billing.--
       ``(1) In general.--As part of the rulemaking under 
     subsection (a), the Commission shall promulgate regulations 
     to protect consumers in the use of usage-based billing by 
     Internet service providers.
       ``(2) Plain language disclosure of terms and conditions.--
       ``(A) In general.--The regulations under paragraph (1) 
     shall require an Internet service provider to provide a plain 
     language disclosure of all terms and conditions associated 
     with its use of usage-based billing to a consumer prior to 
     the purchase of Internet service.
       ``(B) Contents.--The plain language disclosure under this 
     paragraph shall include--
       ``(i) an explanation of how usage-based billing will be 
     applied to the consumer;
       ``(ii) a complete list of the tiers of service;
       ``(iii) comparisons of how much data of varying types, 
     including video programming in standard and high-definition, 
     the consumer would be able to consume each month under each 
     tier;
       ``(iv) the procedure for providing the consumer the 
     notifications under paragraph (4);
       ``(v) an explanation of the consequences, if any, to a 
     consumer for exceeding the consumer's data usage amount, 
     including any fees that may be charged and any options a 
     consumer may have to avoid those fees;
       ``(vi) if the Internet service provider provides a tool for 
     a consumer to monitor the consumer's data usage, a 
     description of the tool and how to use it;
       ``(vii) the appeals procedure under paragraph (5); and
       ``(viii) any other information that the Commission 
     considers necessary to protect consumers in the use of usage-
     based billing by Internet service providers.
       ``(3) Monthly disclosure of data usage.--
       ``(A) Data usage.--An Internet service provider that uses 
     usage-based billing shall provide a plain language disclosure 
     to a consumer of the consumer's data usage during each 
     billing cycle as part of the consumer's bill.
       ``(B) Data usage trends.--An Internet service provider that 
     uses usage-based billing shall include in the consumer's bill 
     information documenting the consumer's data usage over the 
     prior 6 monthly bills or over

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     a period beginning on the date that the consumer contracted 
     for the Internet service, whichever is shorter.
       ``(4) Notifications.--
       ``(A) In general.--An Internet service provider that uses 
     usage-based billing shall provide to a consumer notification 
     of the amount of data the consumer has remaining at the 
     midpoint of a billing cycle, and at any other increments the 
     Commission finds are in the public interest.
       ``(B) Form.--The Commission may determine the form of the 
     notifications required under this paragraph.
       ``(5) Consumer appeals.--Each Internet service provider 
     that uses usage-based billing shall establish an appeals 
     procedure for a consumer to obtain more detailed information 
     about the consumer's Internet data usage and to challenge the 
     Internet service provider's determination of that consumer's 
     data usage.
       ``(c) Truth-in-Billing for Internet Services.--
       ``(1) In general.--Not later than 1 year after the date of 
     enactment of the Consumer Choice in Online Video Act, the 
     Commission shall update its truth-in-billing rules to extend 
     the rules to Internet service providers.
       ``(2) Bundled services.--As part of the rulemaking under 
     paragraph (1), the Commission shall consider whether it is in 
     the public interest to establish truth-in-billing rules for 
     bundled communications service packages.
       ``(d) Exemption.--The Commission may exempt an Internet 
     service provider serving 20,000 or fewer subscribers from the 
     requirements of this section
       ``(e) Special Consideration.--The Commission may take into 
     account the special considerations in an Internet service 
     provider's delivery technology, including wireless, when 
     implementing this section.

     ``SEC. 722. CERTIFICATION OF DATA USAGE MONITORING SYSTEMS.

       ``(a) Independent Certification Required.--
       ``(1) In general.--An Internet service provider may not use 
     a data usage monitoring system as part of usage-based billing 
     unless the data usage monitoring system is certified under 
     this section.
       ``(2) Development of standards.--The Commission, after 
     consultation with the National Institute of Standards and 
     Technology, shall develop standards to ensure that a data 
     usage monitoring system accurately measures a consumer's 
     usage of data.
       ``(3) Certification process.--The Commission may certify a 
     data usage monitoring system for use in usage-based billing 
     if it determines that the data usage monitoring system 
     accurately measures consumer data usage and is in material 
     compliance with the standards under paragraph (2).
       ``(4) Permissible delegation.--The Commission may designate 
     1 or more impartial third parties to conduct the 
     certification of a data usage monitoring system under this 
     section.
       ``(b) Periodic Review.--The Commission shall determine how 
     to ensure that an Internet service provider's data usage 
     monitoring system remains in compliance with this section.
       ``(c) Definition of Data Usage Monitoring System.--In this 
     section, the term `data usage monitoring system' means a 
     system of monitoring and calculating the amount of data a 
     user has consumed--
       ``(1) while accessing the Internet;
       ``(2) while using hardware, software, or applications that 
     consume data transmitted over the Internet; or
       ``(3) while accessing another IP-based transmission path 
     provided by an Internet service provider or another entity.
       ``(d) Penalties.--The Commission is authorized to assess 
     penalties against any Internet service provider that fails to 
     comply with this section.
       ``(e) Rulemaking.--
       ``(1) In general.--The Commission shall promulgate 
     regulations to implement this section not later than 1 year 
     after the date of enactment of the Consumer Choice in Online 
     Video Act.
       ``(2) Exemption.--The regulations under paragraph (1) may 
     provide an exemption from the regulations for an Internet 
     service provider serving 20,000 or fewer subscribers.
       ``(3) Special considerations.--The Commission may take into 
     account the special considerations in an Internet service 
     provider's delivery technology, including wireless, when 
     implementing this section.''.

            TITLE II--ONLINE VIDEO DISTRIBUTION ALTERNATIVES

     SEC. 201. PROTECTIONS FOR ONLINE VIDEO DISTRIBUTORS.

       Title VI of the Communications Act of 1934 (47 U.S.C. 521 
     et seq.) is amended by adding at the end the following:

                  ``PART VI--ONLINE VIDEO DISTRIBUTORS

     ``SEC. 661. DEFINITIONS.

       ``In this part:
       ``(1) Affiliated with.--For purposes of sections 663, 664, 
     and 667, the term `affiliated with' means that the Internet 
     service provider, multichannel video programming distributor, 
     online video distributor, or video programming vendor, as 
     appropriate, directly or indirectly, is owned or controlled 
     by, owns or controls, or is under common ownership or control 
     with another Internet service provider, multichannel video 
     programming distributor, online video distributor, or video 
     programming vendor, as appropriate. For purposes of this 
     paragraph, the term `own' means to own an equity interest, or 
     the equivalent thereof, of more than 10 percent.
       ``(2) Video programming.--The term `video programming' 
     means programming provided by, or generally considered 
     comparable to programming provided by, a television broadcast 
     station, whether or not such programming is delivered using a 
     portion of the electromagnetic frequency spectrum.

     ``SEC. 662. ENHANCEMENT OF CONSUMER CHOICE IN ONLINE VIDEO.

       ``The purposes of this part are
       ``(1) to promote the public interest, convenience, and 
     necessity by increasing competition, innovation, and 
     diversity in the video programming marketplace;
       ``(2) to enhance consumer access to online video 
     distribution platforms and consumer choice in online video 
     programming; and
       ``(3) to increase the availability of video programming on 
     all platforms, including Internet-based platforms.

     ``SEC. 663. DEVELOPMENT OF COMPETITION AND DIVERSITY IN 
                   ONLINE VIDEO DISTRIBUTION.

       ``(a) Prohibition.--It shall be unlawful for a designated 
     distributor to engage in unfair methods of competition or 
     unfair or deceptive acts or practices, the purpose or effect 
     of which are to hinder significantly or prevent an online 
     video distributor from providing video programming to 
     consumers, including over any platform or device capable of 
     delivering that online video distributor's content to 
     consumers.
       ``(b) Regulations.--
       ``(1) In general.--Not later than 1 year after the date of 
     enactment of the Consumer Choice in Online Video Act, the 
     Commission shall promulgate regulations to implement this 
     section.
       ``(2) Minimum contents.--At a minimum, the regulations 
     under this section shall--
       ``(A) specify the conduct that constitutes a prima facie 
     violation of subsection (a); and
       ``(B) establish effective safeguards to prevent a 
     designated distributor from--
       ``(i) unduly or improperly influencing the decision of any 
     other entity to make a television set or other customer 
     premises equipment incompatible with the services provided by 
     any online video distributor;
       ``(ii) unduly or improperly using its own customer premises 
     equipment to discriminate against, or otherwise favor its own 
     services over, the service provided by any online video 
     distributor;
       ``(iii) unduly or improperly influencing the decision of 
     any other entity to sell, or the prices, terms, and 
     conditions of the sale of, video programming to any online 
     video distributor; and
       ``(iv) providing an incentive to any entity in an attempt 
     to deny video programming to an online video distributor.
       ``(c) Exceptions.--
       ``(1) In general.--Subject to paragraph (2), a designated 
     distributor shall not be prohibited from--
       ``(A) imposing reasonable requirements for 
     creditworthiness, offering of service, and financial 
     stability and standards regarding character and technical 
     quality;
       ``(B) establishing different prices, terms, and conditions 
     to take into account economies of scale, cost savings, or 
     other direct and legitimate economic benefits reasonably 
     attributable to the number of subscribers served by the 
     online video distributor; and
       ``(C) imposing reasonable requirements to ensure the 
     security of the video programming being provided to the 
     online video distributor, including means to authenticate the 
     right of the distributor's subscribers to access the 
     programming.
       ``(2) Limitations.--An exception under paragraph (1)--
       ``(A) shall be related to the substantial, real, and 
     legitimate business concerns of the designated distributor; 
     and
       ``(B) may not be used in an anticompetitive manner.
       ``(d) Definition of Designated Distributor.--
       ``(1) In general.--In this section, the term `designated 
     distributor' means--
       ``(A) a multichannel video programming distributor 
     affiliated with an Internet service provider;
       ``(B) an online video distributor affiliated with an 
     Internet service provider; or
       ``(C) a video programming vendor with significant market 
     power.
       ``(2) Significant market power.--The Commission shall 
     establish rules for determining whether a video programming 
     vendor has significant market power under paragraph (1)(C).

     ``SEC. 664. ACCESS TO VIDEO PROGRAMMING.

       ``(a) Prohibitions.--It shall be unlawful for a 
     multichannel video programming distributor or an online video 
     distributor--
       ``(1) to include in a contract with any video programming 
     vendor a provision that serves as a substantial disincentive 
     for the video programming vendor to sell its content to an 
     online video distributor;
       ``(2) to use any practice, understanding, arrangement, or 
     other agreement with a video programming vendor that has the 
     effect of causing the video programming vendor to face a 
     substantial disincentive to sell its content to an online 
     video distributor; or
       ``(3) to enter into a contract with a video programming 
     vendor that has the effect of preventing an online video 
     distributor from making the video programming vendor's 
     content available on any platform or device capable of 
     delivering that distributor's content to its subscribers.

[[Page S7957]]

       ``(b) Contract Limitations.--A multichannel video 
     programming distributor or an online video distributor may 
     not include in any contract with a video programming vendor 
     any provision that requires the multichannel video 
     programming distributor or online video distributor, as 
     applicable, to be treated in material parity with other 
     similarly situated multichannel video programming 
     distributors or online video distributors with regard to 
     pricing or other terms and conditions of carriage of video 
     programming.
       ``(c) Retaliation Prohibited.--A multichannel video 
     programming distributor or an online video distributor may 
     not retaliate against--
       ``(1) any video programming vendor for making its video 
     programming available to an online video distributor;
       ``(2) any online video distributor for obtaining video 
     programming from a video programming vendor; or
       ``(3) any entity for exercising a right under this Act.
       ``(d) Exception.--Notwithstanding subsection (a) or any 
     other provision of this part, a multichannel video 
     programming distributor or an online video distributor may 
     enter into an exclusive contract with a video programming 
     vendor for video programming provided by that video 
     programming vendor if the contract does not exceed the limits 
     or violate the prohibitions under subsection (e).
       ``(e) Public Interest Limitations on Exclusive Contracts.--
       ``(1) In general.--The Commission shall adopt limits on--
       ``(A) the ability of a multichannel video programming 
     distributor or an online video distributor to enter into any 
     contract for video programming that includes an exclusivity 
     provision that substantially deters the development of an 
     online video distribution alternative; and
       ``(B) the ability of an online video distributor to enter 
     into any contract for video programming that includes an 
     exclusivity provision that substantially deters the 
     development of an online video distribution alternative.
       ``(2) Prohibited contracts.--The Commission shall 
     prohibit--
       ``(A) a multichannel video programming distributor from 
     entering into an exclusive contract with a video programming 
     vendor that is affiliated with the multichannel video 
     programming distributor; and
       ``(B) an online video distributor from entering into an 
     exclusive contract with a video programming vendor that is 
     affiliated with the online video distributor.
       ``(3) Limitations on other exclusive contracts for video 
     programming.--
       ``(A) In general.--The Commission shall establish criteria 
     for determining whether an exclusive contract for programming 
     substantially deters the development of an online video 
     distribution alternative.
       ``(B) Considerations.--In establishing the criteria under 
     subparagraph (A), the Commission shall consider the totality 
     of the circumstances surrounding the contract, including--
       ``(i) the duration of the exclusivity period;
       ``(ii) the effect of the exclusive contract on capital 
     investment in the production and distribution of video 
     programming;
       ``(iii) the time period after initial first-day 
     distribution of video programming to consumers when the 
     multichannel video programming distributor or the online 
     video distributor is granted exclusive access to distribute 
     the programming; and
       ``(iv) the likelihood that the exclusive contract will 
     enhance diversity in programming on video distribution 
     platforms.
       ``(f) Online Distribution of Content by a Video Programming 
     Vendor.--
       ``(1) In general.--A multichannel video programming 
     distributor or an online video distributor may not enter into 
     an agreement that limits or prohibits a video programming 
     vendor from making its video content available to consumers 
     free over the Internet.
       ``(2) Exception.--The prohibition under paragraph (1) shall 
     not apply if the duration of the agreement is 30 days or 
     less.
       ``(g) Prices, Terms, and Conditions for Programming.--A 
     video programming vendor may establish different prices, 
     terms, and conditions for its video programming if, taking 
     into account economies of scale, cost savings, or other 
     direct and legitimate economic benefits that are reasonably 
     attributable to the number of subscribers served by an online 
     video distributor, the prices, terms, and conditions--
       ``(1) are related to substantial, real, and legitimate 
     business concerns of the video programming vendor; and
       ``(2) are not used in an anticompetitive manner.
       ``(h) Regulations.--
       ``(1) In general.--Not later than 1 year after the date of 
     enactment of the Consumer Choice in Online Video Act, the 
     Commission shall promulgate regulations to specify particular 
     conduct that is prohibited by this section.
       ``(2) Minimum contents.--The regulations under this section 
     shall establish, at a minimum--
       ``(A) effective safeguards to prevent any activity 
     prohibited by this section; and
       ``(B) complaint and contract review procedures to 
     facilitate the Commission's ability to determine if a 
     multichannel video programming distributor, a video 
     programming vendor, or an online video distributor has 
     violated this section.
       ``(i) Existing Contracts.--
       ``(1) In general.--Subject to paragraph (2), nothing in 
     this section shall affect any contract, understanding, or 
     arrangement that was entered into on or before December 1, 
     2013.
       ``(2) Exceptions.--No contract, understanding, or 
     arrangement entered into on or before December 1, 2013, that 
     violates this section shall be enforceable by any person 
     after the date that is 3 years after the date of enactment of 
     the Consumer Choice in Online Video Act.
       ``(3) Limitation on renewals.--A contract, understanding, 
     or arrangement that was entered into on or before December 1, 
     2013, but that is renewed or extended after the date of 
     enactment of the Consumer Choice in Online Video Act shall 
     not be exempt under paragraph (1).

     ``SEC. 665. FOSTERING ACCESS TO VIDEO PROGRAMMING.

       ``(a) In General.--Not later than 1 year after the date of 
     enactment of the Consumer Choice in Online Video Act, the 
     Commission shall commence a proceeding to determine the 
     additional steps it should take, in the public interest, to 
     foster the ability of online video distributors to gain 
     access to video programming, offer innovative services, and 
     compete with multichannel video programming distributors.
       ``(b) Limitation.--The Commission shall not compel a video 
     programming vendor to sell its video programming to an online 
     video distributor as part of any rules adopted under this 
     section.

     ``SEC. 666. BROADCAST TELEVISION LICENSEES AND TELEVISION 
                   NETWORKS.

       ``(a) Duty to Negotiate.--It shall be unlawful for a 
     broadcast television licensee or television network--
       ``(1) to refuse to negotiate with an online video 
     distributor for carriage of the broadcast television 
     licensee's or the television network's content, as 
     applicable; or
       ``(2) to place any restriction on an online video 
     distributor's ability to make the broadcast television 
     licensee's or the television network's content, as 
     applicable, available on any platform or device that is 
     capable of delivering the online video distributor's content 
     to its subscribers.
       ``(b) Refusal to Negotiate; Commission Determination.--The 
     Commission shall determine what constitutes a refusal to 
     negotiate under subsection (a). The Commission may require a 
     broadcast television licensee or television network to engage 
     in good faith negotiations with an online video distributor. 
     The Commission shall define good faith for purposes of this 
     subsection.
       ``(c) Online Retransmission of In-Market Broadcast 
     Signals.--
       ``(1) Signal parity.--
       ``(A) In general.--It shall be unlawful for a broadcast 
     television licensee to provide an over-the-air signal that 
     differs from a retransmission of that signal provided to a 
     multichannel video programming distributor or an online video 
     distributor.
       ``(B) Exception.--Subparagraph (A) shall not apply if--
       ``(i) the variation in the 2 signals consists of a change 
     to 1 or more commercial advertisements of not more than 60 
     seconds in duration embedded in a broadcast television 
     licensee's signal; and
       ``(ii) the broadcast television licensee is not using the 
     variation under clause (i) to increase the overall amount of 
     advertising time in its over-the-air signal.
       ``(2) Antenna rental services.--
       ``(A) In general.--Notwithstanding any other provision of 
     this Act, except subparagraph (C), an entity may rent to a 
     consumer access to an individual antenna to view over-the-air 
     broadcast television signals transmitted from that antenna--
       ``(i) directly to the consumer over the Internet or another 
     IP-based transmission path; or
       ``(ii) to an individual data storage system, including an 
     online remote data storage system, for recording and then 
     made accessible to that consumer through the Internet or 
     another IP-based transmission path.
       ``(B) Retransmission consent fees.--An antenna rental 
     service described under subparagraph (A) shall be exempt from 
     paying retransmission consent fees under section 325 of this 
     Act to any broadcast television station whose signal is 
     received by the individual antenna and retransmitted to the 
     subscriber.
       ``(C) Conditions of rental services.--An antenna rental 
     service described under subparagraph (A) shall--
       ``(i) only provide a subscriber with access to over-the-air 
     broadcast television signals received by an individual 
     antenna located in the same designated market area (as 
     defined in section 671 of this Act) in which that subscriber 
     resides; and
       ``(ii) make available to a subscriber all over-the-air 
     broadcast signals that are received by the individual antenna 
     rented by that subscriber, unless a signal is of such poor 
     quality that it cannot be transmitted to the consumer in a 
     reasonably viewable form.
       ``(d) Limits in Existing Programming and Affiliation 
     Contracts.--
       ``(1) In general.--It shall be unlawful for any entity 
     selling or otherwise providing video programming to be 
     transmitted by a broadcast television licensee or television 
     network to include in any contract, agreement, understanding, 
     or arrangement with that licensee or network a limitation on 
     the ability of that licensee or network to comply with the 
     requirements of this section.
       ``(2) Existing contracts.--
       ``(A) In general.--Subject to subparagraph (B), nothing in 
     this section shall affect any

[[Page S7958]]

     contract, understanding, or arrangement that was entered into 
     on or before December 1, 2013.
       ``(B) Exceptions.--No contract, understanding, or 
     arrangement entered into on or before December 1, 2013, that 
     violates this section shall be enforceable by any person 
     after the date that is 3 years after the date of enactment of 
     the Consumer Choice in Online Video Act.
       ``(C) Limitation on renewals.--A contract, understanding, 
     or arrangement that was entered into on or before December 1, 
     2013, but that is renewed or extended after the date of 
     enactment of the Consumer Choice in Online Video Act shall 
     not be exempt under subparagraph (A).
       ``(e) Regulations.--Not later than 1 year after the date of 
     enactment of the Consumer Choice in Online Video Act, the 
     Commission shall promulgate regulations to implement this 
     section. The Commission shall not compel a broadcast 
     television licensee or television network to sell its video 
     programming to an online video distributor as part of any 
     rules adopted under this section.

     ``SEC. 667. CONSUMER ACCESS TO CONTENT.

       ``(a) In General.--It shall be unlawful for a designated 
     Internet service provider to engage in unfair methods of 
     competition or unfair or deceptive acts or practices, the 
     purpose or effect of which are to hinder significantly or to 
     prevent an online video distributor from providing video 
     programming to a consumer.
       ``(b) Regulations.--Not later than 1 year after the date of 
     enactment of the Consumer Choice in Online Video Act, the 
     Commission shall promulgate regulations to specify particular 
     conduct that is prohibited by subsection (a). The 
     Commission's regulations under this section shall ensure, at 
     a minimum, that a designated Internet service provider does 
     not--
       ``(1) block, degrade, or otherwise impair any content 
     provided by an online video distributor;
       ``(2) unreasonably discriminate in transmitting the content 
     of an unaffiliated online video distributor over the 
     designated Internet service provider's network;
       ``(3) provide benefits in the transmission of the video 
     content of any company affiliated with the Internet service 
     provider through specialized services or other means, or 
     otherwise leverage its ownership of the physical delivery 
     architecture to benefit that affiliated company in a way that 
     has the effect of harming competition from an unaffiliated 
     online video distributor; or
       ``(4) use billing systems, such as usage-based billing, in 
     a way that deters competition from unaffiliated online video 
     distributors that may be in competition with the Internet 
     service provider's or its affiliate's services.
       ``(c) Definition of Designated Internet Service Provider.--
     In this section, the term `designated Internet service 
     provider' means an Internet service provider that is 
     affiliated with a multichannel video programming distributor, 
     an online video distributor, or a video programming vendor.

     ``SEC. 668. BLOCKING CONSUMER ACCESS TO ONLINE VIDEO 
                   PROGRAMMING.

       ``(a) In General.--No video programming vendor that has 
     made available its video programming to consumers online may 
     restrict access to that online video programming for a 
     subscriber of a multichannel video programming distributor or 
     its affiliate, or an online video distributor or its 
     affiliate, during the time that vendor is involved in a 
     dispute with such distributor.
       ``(b) Exception.--
       ``(1) In general.--If a video programming vendor requires a 
     consumer to purchase access to its online video programming 
     through a contract with a multichannel video programming 
     distributor or an online video distributor then that vendor 
     may restrict access to that online video programming during 
     the time that the vendor is involved in a dispute with that 
     distributor.
       ``(2) Limitation.--The exception under this subsection 
     shall apply only to a subscriber to video services provided 
     by a multichannel video programming distributor or an online 
     video distributor involved in the dispute and not to a 
     subscriber to any other service provided by that distributor 
     or its affiliate.
       ``(c) Remedies.--
       ``(1) In general.--Any entity that is aggrieved by a 
     violation of this section may bring a civil action in a 
     United States district court or in any other court of 
     competent jurisdiction.
       ``(2) Authority.--The court may--
       ``(A) grant a temporary or final injunction on such terms 
     as it may deem reasonable to prevent or restrain violations 
     of this section;
       ``(B) award any damages it deems appropriate; and
       ``(C) direct the recovery of full costs, including awarding 
     reasonable attorneys' fees to an aggrieved party who 
     prevails.
       ``(d) Definitions.--In this section:
       ``(1) Available online.--The term `available online' means 
     both available over the Internet and through applications, 
     software, or other similar services on a mobile device.
       ``(2) Dispute.--The term `dispute' includes--
       ``(A) a dispute over carriage of the programming provided 
     by a video programming vendor to a multichannel video 
     programming distributor or online video distributor; and
       ``(B) a dispute over carriage of the programming provided 
     by a television licensee or television network under section 
     325(b) of this Act.
       ``(3) Entity that is aggrieved.--The term `entity that is 
     aggrieved' includes--
       ``(A) a consumer whose access to online video programming 
     has been restricted in violation of this section; and
       ``(B) a multichannel video programming distributor or its 
     affiliate, or an online video distributor or its affiliate, 
     that has had a subscriber's access to online video 
     programming restricted in violation of this section.

     ``SEC. 669. REMEDIES AND ADJUDICATIONS.

       ``(a) Adjudicatory Proceedings.--Any online video 
     distributor aggrieved by conduct that it alleges constitutes 
     a violation of this part, or the regulations of the 
     Commission under this part, may commence an adjudicatory 
     proceeding at the Commission.
       ``(b) Remedies.--
       ``(1) Remedies authorized.--
       ``(A) Interim remedies.--The Commission may authorize 
     interim remedies during the pendency of a complaint.
       ``(B) Appropriate remedies.--Upon completion of an 
     adjudicatory proceeding under this section, the Commission 
     shall have the power to order appropriate remedies, 
     including, if necessary, the power to establish prices, 
     terms, and conditions of sale of programming to the aggrieved 
     online video distributor.
       ``(2) Additional remedies.--The remedies provided in 
     paragraph (1) are in addition to and not in lieu of the 
     remedies available under title V or any other provision of 
     this Act.
       ``(c) Procedures.--In promulgating regulations to implement 
     this part, the Commission shall--
       ``(1) provide for an expedited review of any complaint made 
     under this part, including a procedural timeline to conclude 
     the review of each complaint not later than 180 days after 
     the date the complaint is filed;
       ``(2) establish procedures for the Commission to collect 
     any data, including the right to obtain copies of all 
     contracts and documents reflecting any practice, 
     understanding, arrangement, or agreement alleged to violate 
     this part, as the Commission requires to carry out this part; 
     and
       ``(3) provide for penalties to be assessed against any 
     person filing a frivolous complaint under this part.''.

     SEC. 202. FEDERAL COMMUNICATIONS COMMISSION REPORT ON 
                   PEERING.

       (a) In General.--The Commission shall study--
       (1) the status of peering, transit, and interconnection 
     agreements related to the transport and delivery of content 
     over the Internet and other IP-based transmission paths; and
       (2) what impact the agreements under paragraph (1) or 
     disputes about the agreements under paragraph (1) have on 
     consumers and competition with respect to online video.
       (b) Report.--Not later than 3 years after the date of 
     enactment of this Act, the Commission shall report the 
     findings of the study under subsection (a) to the Committee 
     on Commerce, Science, and Transportation of the Senate and 
     the Committee on Energy and Commerce of the House of 
     Representatives.

    TITLE III--NON-FACILITIES BASED MULTICHANNEL VIDEO PROGRAMMING 
                              DISTRIBUTORS

     SEC. 301. NON-FACILITIES BASED MULTICHANNEL VIDEO PROGRAMMING 
                   DISTRIBUTORS.

       Title VI of the Communications Act of 1934 (47 U.S.C. 521 
     et seq.), as amended by title II of this Act, is further 
     amended by adding at the end the following:

    ``PART VII--NON-FACILITIES BASED MULTICHANNEL VIDEO PROGRAMMING 
                              DISTRIBUTORS

     ``SEC. 671. DEFINITIONS.

       ``In this part:
       ``(1) Designated market area.--The term `designated market 
     area' means a designated market area as determined by Nielsen 
     Media Research or by any successor system of dividing 
     broadcast television licensees into local markets that the 
     Commission determines is equivalent to the designated market 
     area system created by Nielsen Media Research.
       ``(2) Local commercial television station.--The term `local 
     commercial television station' means, with respect to a 
     subscriber to a non-facilities based multichannel video 
     programming distributor, any full power commercial television 
     station licensed and operating on a channel regularly 
     assigned to a community in the same designated market area as 
     the subscriber.
       ``(3) Local noncommercial educational television station.--
     The term `local noncommercial educational television station' 
     means, with respect to a subscriber to a non-facilities based 
     multichannel video programming distributor, a television 
     broadcast station that is a noncommercial educational 
     broadcast station (as defined in section 397 of this Act), 
     licensed and operating on a channel regularly assigned to a 
     community in the same designated market area as the 
     subscriber.
       ``(4) Non-local commercial television station.--The term 
     `non-local commercial television station' means, with respect 
     to a subscriber to a non-facilities based multichannel video 
     programming distributor, any full power commercial television 
     station licensed and operating on a channel regularly 
     assigned to a community not located in the same designated 
     market area as the subscriber.

[[Page S7959]]

       ``(5) Video programming.--The term `video programming' 
     means programming provided by, or generally considered 
     comparable to programming provided by, a television broadcast 
     station, whether or not such programming is delivered using a 
     portion of the electromagnetic frequency spectrum.

     ``SEC. 672. RIGHT TO ELECT STATUS.

       ``(a) In General.--Any online video distributor that 
     provides programming in a manner reasonably equivalent to a 
     multichannel video programming distributor may elect to be 
     treated as a non-facilities based multichannel video 
     programming distributor under this part.
       ``(b) Procedure for Election.--Not later than 1 year after 
     the date of enactment of the Consumer Choice in Online Video 
     Act, the Commission shall establish the form and procedures 
     for an online video distributor to make the election 
     permitted under subsection (a).
       ``(c) Definition of Reasonably Equivalent.--For purposes of 
     this section, the term `reasonably equivalent'--
       ``(1) means providing multiple channels of video 
     programming that allow a subscriber to watch that programming 
     in a fashion comparable to the services provided by 
     multichannel video programming distributors, regardless of 
     the means used to transmit the multiple channels of video 
     programming;
       ``(2) shall be based upon the subscriber experience in 
     using the service provided by the online video distributor, 
     and not the underlying technology used by the online video 
     distributor; and
       ``(3) may include services that include the ability for a 
     subscriber to record video programming and watch recorded 
     programming at another time if the underlying video 
     programming service being recorded conforms to this 
     subsection.

     ``SEC. 673. EFFECT OF ELECTION.

       ``Any online video distributor that elects to be treated as 
     a non-facilities based multichannel video programming 
     distributor under section 672 shall have all of the rights 
     and responsibilities under this part.

     ``SEC. 674. FEDERAL COMMUNICATIONS COMMISSION PROCEEDING.

       ``(a) In General.--Not later than 1 year after the date of 
     enactment of the Consumer Choice in Online Video Act, the 
     Commission shall--
       ``(1) determine whether any of its rules and regulations 
     applicable to a multichannel video programming distributor 
     shall also be applied, in the public interest, to a non-
     facilities based multichannel video programming distributor;
       ``(2) require a non-facilities based multichannel video 
     programming distributor to comply with the access to 
     broadcast time requirement under section 312(a)(7) of this 
     Act and the use of facilities requirements under section 315 
     of this Act;
       ``(3) consider whether it is in the public interest for the 
     Commission to adopt minimum technical quality standards for a 
     non-facilities based multichannel video programming 
     distributor; and
       ``(4) adopt any other rules the Commission considers 
     necessary to implement this part.
       ``(b) Limitation.--The Commission shall not require, as 
     part of its rulemaking under subsection (a), a non-facilities 
     based multichannel video programming distributor to comply 
     with the basic tier and tier buy-through requirement under 
     section 623(b)(7).

     ``SEC. 675. PROGRAM ACCESS FOR NON-FACILITIES BASED 
                   MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTORS.

       ``(a) In General.--The Commission shall prohibit practices, 
     understandings, arrangements, and activities, including any 
     exclusive contract for video programming between a 
     multichannel video programming distributor and a video 
     programming vendor or an online video distributor and a video 
     programming vendor that prevents a non-facilities based 
     multichannel video programming distributor from obtaining 
     programming from any video programming vendor.
       ``(b) Specific Actions Prohibited.--
       ``(1) Material parity restrictions.--A multichannel video 
     programming distributor or an online video distributor may 
     not include in any contract with a video programming vendor 
     any provision that requires the multichannel video 
     programming distributor or online video distributor, as 
     applicable, to be treated in material parity with other 
     similarly situated multichannel video programming 
     distributors or online video distributors with regard to 
     pricing or other terms and conditions of carriage of video 
     programming.
       ``(2) Retaliation prohibited.--A multichannel video 
     programming distributor or an online video distributor may 
     not retaliate against--
       ``(A) any video programming vendor for making its video 
     programming available to a non-facilities based multichannel 
     video programming distributor;
       ``(B) any non-facilities based multichannel video 
     programming distributor for obtaining video programming from 
     a video programming vendor; or
       ``(C) any entity for exercising a right under this Act.

     ``SEC. 676. CONSUMER CHOICE IN VIDEO PROGRAMMING.

       ``(a) In General.--As part of the rulemaking required by 
     section 674, the Commission shall determine what, if any, 
     additional steps it should take, in the public interest, to 
     allow a non-facilities based multichannel video programming 
     vendor to offer a subscriber greater choice over the video 
     programming that is part of the subscriber's service.
       ``(b) Considerations.--As part of the proceeding under 
     subsection (a), the Commission shall consider whether to 
     limit a video programming vendor's use of certain contractual 
     terms and conditions that disincentivize or impede the 
     ability of a subscriber to have greater choice over the video 
     programming packages or options the subscriber can purchase 
     from a non-facilities based multichannel video programming 
     vendor.
       ``(c) Limitation.--The Commission shall not compel a video 
     programming vendor to sell its video programming to a non-
     facilities based multichannel video programming vendor as 
     part of any rules adopted under this section.

     ``SEC. 677. CARRIAGE OF COMMERCIAL BROADCAST TELEVISION 
                   SIGNALS.

       ``(a) In-Market Broadcast Television Signals.--
       ``(1) In general.--At the request of a non-facilities based 
     multichannel video programming distributor serving a 
     designated market area, a local commercial television 
     broadcast station located in that designated market area 
     shall enter into negotiations for carriage of its content 
     over that distributor's system.
       ``(2) Good faith requirements.--A local commercial 
     television station subject to the duty to negotiate under 
     paragraph (1) shall engage in good faith negotiations for 
     carriage of its signal in the designated marketed area where 
     the station is located. The Commission shall define good 
     faith for purposes of this paragraph.
       ``(3) Good signal requirements.--A local commercial 
     television broadcast station being carried by a non-
     facilities based multichannel video programming distributor 
     under this subsection shall be responsible for delivering a 
     good quality signal suitable for distribution by that 
     distributor.
       ``(b) Out-of-Market Broadcast Television Signals.--
       ``(1) In general.--In addition to any signal carried under 
     subsection (a), a non-facilities based multichannel video 
     programming distributor also may deliver to a subscriber the 
     signal of a non-local commercial broadcast television station 
     under this subsection and subsection (c).
       ``(2) Deemed significantly viewed.--
       ``(A) In general.--A signal of a non-local commercial 
     broadcast television station delivered by a non-facilities 
     based multichannel video programming distributor under this 
     section shall be deemed to be significantly viewed within the 
     meaning of section 76.54 of title 47, Code of Federal 
     Regulations.
       ``(B) Exemptions.--The following regulations shall not 
     apply to a signal that is eligible to be carried under this 
     subsection:
       ``(i) Section 76.92 of title 47, Code of Federal 
     Regulations (relating to cable network non-duplication).
       ``(ii) Section 76.122 of title 47, Code of Federal 
     Regulations (relating to satellite network non-duplication).
       ``(iii) Section 76.101 of title 47, Code of Federal 
     Regulations (relating to cable syndicated program 
     exclusivity).
       ``(iv) Section 76.123 of title 47, Code of Federal 
     Regulations (relating to satellite syndicated program 
     exclusivity).
       ``(v) Section 76.111 of title 47, Code of Federal 
     Regulations (relating to cable sports blackout).
       ``(vi) Section 76.127 of title 47, Code of Federal 
     Regulations (relating to satellite sports blackout).
       ``(3) Subscriber preference.--In delivering a non-local 
     commercial broadcast television station signal to a 
     subscriber under this subsection, and consistent with 
     subsection (c)--
       ``(A) the non-facilities based multichannel video 
     programming distributor shall provide the subscriber with 
     information regarding all signals that the distributor is 
     capable of making available to the subscriber under this 
     subsection;
       ``(B) the non-facilities based multichannel video 
     programming distributor shall offer a subscriber the option 
     to choose each non-local commercial television station signal 
     the subscriber wants to receive as part of the subscriber's 
     service; and
       ``(C) if a subscriber does not make a choice under 
     subparagraph (B), the non-facilities based multichannel video 
     programming distributor shall take reasonable steps to 
     deliver to the subscriber the signal of each non-local 
     commercial television station that is closest in proximity.
       ``(4) Definition of closest in proximity.--
       ``(A) In general.--For purposes of paragraph (3), the term 
     `closest in proximity' means the non-local commercial 
     television station whose community of license is the closest 
     in distance to the subscriber's place of residence.
       ``(B) Inclusions.--For purposes of paragraph (3), the term 
     `closest in proximity' includes a non-local commercial 
     television station located in a State other than the State of 
     the subscriber's place of residence.
       ``(c) Subscriber Rights.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, a subscriber to a non-facilities based multichannel 
     video programming distributor shall be entitled to receive 
     programming from not more than 2 commercial television 
     stations that are affiliates of the same television network 
     and not more than 1 of the affiliates may be located in a

[[Page S7960]]

     designated market area where the subscriber does not reside.
       ``(2) Local signal not required.--A non-facilities based 
     multichannel video programming distributor shall not be 
     required to carry the signal of a local commercial television 
     station under subsection (a) as a condition to carrying and 
     delivering to a consumer a non-local commercial broadcast 
     television signal under subsection (b).
       ``(3) Mobile platforms.--A subscriber shall have the right 
     to view any commercial television station signal provided to 
     that subscriber under this section at any time and on any 
     device, including a mobile device and any other device not 
     permanently located in the subscriber's place of residence, 
     that a non-facilities based multichannel video programming 
     distributor has made capable of delivering the distributor's 
     service to that subscriber.
       ``(d) Limits in Existing Programming and Affiliation 
     Contracts.--
       ``(1) In general.--It shall be unlawful for any entity 
     selling or otherwise providing video programming to be 
     transmitted by a local or non-local commercial television 
     station to include in any contract, agreement, understanding, 
     or arrangement with that station a limitation on the ability 
     of the station to comply with the requirements of this 
     section.
       ``(2) Existing contracts.--
       ``(A) In general.--Subject to subparagraph (B), nothing in 
     this section shall affect any contract, understanding, or 
     arrangement that was entered into on or before December 1, 
     2013.
       ``(B) Exceptions.--No contract, understanding, or 
     arrangement entered into on or before December 1, 2013, that 
     violates this section shall be enforceable by any person 
     after the date that is 3 years after the date of enactment of 
     the Consumer Choice in Online Video Act.
       ``(C) Limitation on renewals.--A contract, understanding, 
     or arrangement that was entered into on or before December 1, 
     2013, but that is renewed or extended after the date of 
     enactment of the Consumer Choice in Online Video Act shall 
     not be exempt under subparagraph (A).

     ``SEC. 678. CARRIAGE OF NONCOMMERCIAL, EDUCATIONAL, AND 
                   INFORMATIONAL PROGRAMMING.

       ``(a) Local Noncommercial Educational Television 
     Stations.--
       ``(1) In general.--If a non-facilities based multichannel 
     video programming distributor elects to carry a local 
     commercial broadcast television signal under section 677(a), 
     that non-facilities based multichannel video programming 
     distributor shall carry, upon request, the signal of a local 
     noncommercial educational television station located in the 
     same designated market area of the local commercial 
     television broadcast station being carried under that 
     section.
       ``(2) Carriage only in local market.--
       ``(A) In general.--A local noncommercial educational 
     television station shall be entitled to carriage only in the 
     designated market area to which that station is assigned.
       ``(B) Systems of noncommercial educational broadcast 
     stations.--In the case of a system of 3 or more noncommercial 
     educational broadcast stations licensed to a single State, 
     public agency, or political, educational, or special purpose 
     subdivision of a State, the carriage right under this 
     subsection shall apply to any designated market area in the 
     State where that system is located.
       ``(3) Good signal requirements.--A local noncommercial 
     educational television station that requests to be carried by 
     a non-facilities based multichannel video programming 
     distributor under paragraph (1) shall be responsible for 
     delivering a good quality signal suitable for distribution by 
     that distributor.
       ``(b) Channel Reservation Requirements.--
       ``(1) In general.--The Commission shall require a non-
     facilities based multichannel video programming distributor 
     to reserve a portion of its channel capacity, equal to not 
     less than 3.5 percent or not more than 7 percent, exclusively 
     for noncommercial programming of an educational or 
     informational nature.
       ``(2) Use of unused channel capacity.--A non-facilities 
     based multichannel video programming distributor may use for 
     any purpose any unused channel capacity required to be 
     reserved under this subsection pending the actual use of that 
     channel capacity for noncommercial programming of an 
     educational or informational nature.
       ``(3) Prices, terms, and conditions.--A non-facilities 
     based multichannel video programming distributor shall meet 
     the requirements of this subsection by making channel 
     capacity available to each national educational programming 
     supplier, upon reasonable prices, terms, and conditions, as 
     determined by the Commission under paragraph (5).
       ``(4) Editorial control.--A non-facilities based 
     multichannel video programming distributor may not exercise 
     any editorial control over any video programming provided 
     under this subsection.
       ``(5) Limitations.--In determining reasonable prices under 
     paragraph (3)--
       ``(A) the Commission, among other considerations, shall 
     consider the nonprofit character of the programming provider 
     and any Federal funds used to support that programming;
       ``(B) the Commission shall not permit the prices to exceed, 
     for any channel capacity made available under this 
     subsection, 50 percent of the total direct costs of making 
     the channel capacity available; and
       ``(C) in the calculation of total direct costs, the 
     Commission shall exclude--
       ``(i) the marketing costs, general administrative costs, 
     and similar overhead costs of the non-facilities based 
     multichannel video programming distributor; and
       ``(ii) the revenue that the non-facilities based 
     multichannel video programming distributor might have 
     obtained by making that channel capacity available to a video 
     programming vendor.
       ``(6) Definition of channel capacity.--In this section, the 
     term `channel capacity' means the total number of channels of 
     video programming provided to a subscriber by the non-
     facilities based multichannel video programming distributor, 
     without regard to whether that non-facilities based 
     multichannel video programming distributor uses a portion of 
     the electromagnetic frequency spectrum to deliver that 
     channel of video programming.

     ``SEC. 679. LICENSING.

       ``(a) In General.--A non-facilities based multichannel 
     video programming distributor that is carrying any broadcast 
     television station signal under section 677 or section 678 
     shall--
       ``(1) be considered to be a cable system under section 111 
     of title 17, United States Code; and
       ``(2) be subject to--
       ``(A) the statutory licensing requirements set forth in 
     sections 111(c) and 111(e) of that title;
       ``(B) payment of the fees required by section 111(d) of 
     that title; and
       ``(C) the penalties under section 111 of that title for 
     failure to pay the fees required by that section.
       ``(b) Local Service Area of a Primary Transmitter.--For 
     purposes of the application of section 111 of title 17, 
     United States Code, to a non-facilities based multichannel 
     video programming distributor under this section--
       ``(1) a local commercial television station's local service 
     area of a primary transmitter shall consist of the entirety 
     of that station's designated market area; and
       ``(2) a local noncommercial educational television 
     station's local service area of a primary transmitter shall 
     consist of the entirety of that station's designated market 
     area.

     ``SEC. 680. EXCLUSION FROM FRANCHISE REQUIREMENTS.

       ``A non-facilities based multichannel video programming 
     distributor shall not be subject to local franchising 
     requirements under section 621 of this Act or otherwise be 
     regulated by any franchising authority.

     ``SEC. 681. PRIVACY PROTECTIONS.

       ``(a) In General.--A non-facilities based multichannel 
     video programming distributor shall comply with the privacy 
     protections applicable to satellite services as set forth in 
     section 338(i) of this Act and the Commission's regulations 
     under that section.
       ``(b) Penalties.--Any non-facilities based multichannel 
     video programming distributor that fails to comply with the 
     provisions under section 338(i) of this Act, and the 
     Commission's regulations under that section, shall be subject 
     to the penalties set forth in section 338(i)(7) of this Act.

     ``SEC. 682. CONSUMER EQUIPMENT.

       ``Not later than 1 year after the date of enactment of the 
     Consumer Choice in Online Video Act, the Commission shall 
     commence a proceeding to consider whether to adopt rules--
       ``(1) to establish standards to ensure that services and 
     platforms provided by a non-facilities based multichannel 
     video programming distributor can interconnect and interface 
     with--
       ``(A) any Internet-capable television and television 
     receiver; and
       ``(B) any other Internet-capable consumer electronics 
     equipment that facilitates the viewing of video programming 
     on a television receiver; and
       ``(2) to promote the commercial availability of other 
     devices that will permit a consumer to access non-facilities 
     based multichannel video programming distribution services 
     and platforms over equipment of the consumer's choice.

     ``SEC. 683. EFFECTIVE COMPETITION STANDARD.

       ``The number of households subscribing to a non-facilities 
     based multichannel video programming distributor in a 
     franchise area under this part shall not be considered for 
     purposes of a determination by the Commission of whether a 
     cable system is subject to effective competition in that 
     franchise area under section 623 of this Act.

     ``SEC. 684. REMEDIES AND ADJUDICATIONS.

       ``(a) Adjudicatory Proceedings.--Any entity aggrieved by 
     conduct that it alleges constitutes a violation of this part, 
     or the regulations of the Commission under this part, may 
     commence an adjudicatory proceeding at the Commission.
       ``(b) Remedies.--
       ``(1) Remedies authorized.--
       ``(A) Interim remedies.--The Commission may authorize 
     interim remedies during the pendency of a complaint.
       ``(B) Appropriate remedies.--Upon completion of an 
     adjudicatory proceeding under this section, the Commission 
     shall have the power to order appropriate remedies, 
     including, if necessary, the power to establish

[[Page S7961]]

     prices, terms, and conditions of sale of programming to, or 
     prices, terms, and conditions of the transport of the content 
     of, the aggrieved entity.
       ``(2) Additional remedies.--The remedies provided in 
     paragraph (1) are in addition to and not in lieu of the 
     remedies available under title V or any other provision of 
     this Act.
       ``(c) Procedures.--In promulgating regulations to implement 
     this part, the Commission shall--
       ``(1) provide for an expedited review of any complaint made 
     under this part, including a procedural timeline to conclude 
     the review of each complaint not later than 180 days after 
     the date the complaint is filed;
       ``(2) establish procedures for the Commission to collect 
     any data, including the right to obtain copies of all 
     contracts and documents reflecting any practice, 
     understanding, arrangement, or agreement alleged to violate 
     this part, as the Commission requires to carry out this part; 
     and
       ``(3) provide for penalties to be assessed against any 
     person filing a frivolous complaint under this part.''.

                        TITLE IV--MISCELLANEOUS

     SEC. 401. TECHNICAL AND CONFORMING AMENDMENTS.

       Section 602(20) of title VI of the Communications Act of 
     1934 (47 U.S.C. 522(20)) is amended by inserting ``unless 
     expressly provided otherwise,'' before ``the term `video 
     programming' means''.

     SEC. 402. PROVISIONS AS COMPLEMENTARY.

       The provisions of this Act are in addition to, and shall 
     not affect the operation of, other Federal, State, or local 
     laws or regulations regulating billing for Internet service, 
     online video distribution, or non-facilities based 
     multichannel video programming distributors, except if the 
     provisions of any other law are inconsistent with the 
     provisions of this Act, the provisions of this Act shall be 
     controlling.

     SEC. 403. APPLICABILITY OF ANTITRUST LAWS.

       Nothing in this Act or the amendments made by this Act 
     shall be construed to alter or restrict in any manner the 
     applicability of any Federal or State antitrust law.

     SEC. 404. SEVERABILITY.

       If any provision of this Act, an amendment made by this 
     Act, or the application of such provision or amendment to any 
     person or circumstance is held invalid, the remainder of this 
     Act, the amendments made by this Act, and the application of 
     such provision or amendment to any person or circumstance 
     shall not be affected thereby.
                                 ______
                                 
      By Mrs. FEINSTEIN (for herself and Mr. Grassley):
  S. 1686. A bill to amend the Controlled Substances Act to provide 
enhanced penalties for marketing controlled substances to minors; to 
the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, I am pleased to re-introduce, along 
with Senator Grassley, the Saving Kids From Dangerous Drugs Act of 
2013.
  For years, law enforcement has seen drug dealers flavor and market 
their illegal drugs to entice minors, using techniques like combining 
drugs with chocolate and fruit flavors, and even packaging them to look 
like actual candy and soda. This bill would address this serious and 
dangerous problem by providing stronger penalties when drug dealers 
alter controlled substances by combining them with beverages or candy 
products, marketing or packaging them to resemble legitimate products, 
or flavoring or coloring them, all with the intent to sell the drugs to 
minors.
  Recent media reports demonstrate the need for this legislation. In 
January of this year, the Drug Enforcement Administration seized THC-
laden soft drinks, cookies, brownies, and candy from two phony medical 
marijuana dispensaries in my home state of California that grossed an 
estimated $3.5 million annually. The names of the products seized show 
how the purveyors of these drugs marketed them under names that 
resembled popular soda and candy products: bottles were labeled ``7 
High,'' ``Dr. Feelgood,'' and ``Laughing Lemonade''; cookies and 
brownies had such names as ``White Chip Hash Brownie'' and ``Reese's 
Crumbled Hash Brownie''; and candy was named ``Jolly Stones THC 
Medicated Hard Candies'' and ``Stone Candy.''
  Less than two weeks ago, police seized more than 40 pounds of THC-
laced candy from a campus apartment at West Chester University, outside 
of Philadelphia. This candy was vividly colored, in a virtual rainbow 
assortment--pink, yellow, orange, blue, and red. When college students 
are peddling these drugs, it is not hard to see how minors can become 
targets of the operation.
  Many recent incidents involve methamphetamine, a drug whose users 
face a ``very high'' risk of ``developing psychotic symptoms--
hallucinations and delusions,'' according to a recent Harvard Medical 
School publication. A 2007 article in USA Today entitled ``DEA: 
Flavored meth use on the rise'' stated that ``[r]eports of candy-
flavored methamphetamine are emerging around the nation, stirring 
concern among police and abuse prevention experts that drug dealers are 
marketing the drug to younger people.'' In March of last year, police 
in Chicago warned parents about a drug that ``looks and smells like 
candy,'' called ``strawberry quick'' or ``strawberry meth.'' Because of 
the drug's similarity to candy, police urged parents to tell their 
children not to take candy from anyone, not even a classmate.
  Regrettably, this is a problem that has persisted for many years, 
with drug dealers trying various methods to lure kids to try many 
dangerous drugs. The dealers' logic is simple: the best way to create a 
life-long customer is to hook that person when he or she is young. 
According to an Indiana sheriff quoted in a 2007 article entitled 
``Fruity meth aimed at kids,'' flavoring a drug like methamphetamine 
makes it ``more attractive to teens, because it takes away meth's 
normally bitter taste, and some dealers will tell potential users this 
meth is safer, and has less side effects.''
  That is why the practice of flavoring or coloring drugs to entice 
youth is so dangerous--it deceives the young customer into believing 
that he or she is not actually ingesting drugs, or at least not 
ingesting drugs that are as potent as non-flavored drugs. One in three 
teens already believes there is ``only a slight or no risk in trying 
[methamphetamine],'' according to the 2007 National Meth Use & 
Attitudes Survey. When you flavor methamphetamine or market it as candy 
or soda, the number of teens who believe that the drug is not harmful 
is surely higher.
  The size and sophistication of some of these operations is 
particularly alarming. In March of 2006, DEA discovered large-scale 
marijuana cultivation and production facilities in Emeryville and 
Oakland, California. Thousands of marijuana plants, and hundreds of 
marijuana-related soda, candy, and other products were seized from the 
drug dealers' facilities. The products were designed and packaged to 
look like legitimate products, including an item called ``Munchy Way'' 
candy bars.
  Similarly, in March of 2008, Drug Enforcement Administration, DEA, 
agents seized cocaine near Modesto, California, that was valued at 
$272,400; a significant quantity had been flavored like cinnamon, 
coconut, lemon, or strawberry. After that raid, one DEA agent stated 
that ``[a]ttempting to lure new, younger customers to a dangerous drug 
by adding candy `flavors' is an unconscionable marketing technique.''
  I completely agree. That is why we need to act now to stop those who 
alter drugs to make them more appealing to youth.
  Under current federal law, there is no enhanced penalty for a person 
who alters a controlled substance to make the drug more appealing to 
youth. Someone who alters a controlled substance in ways prohibited by 
the legislation we are introducing today would be subject to an 
additional penalty of up to ten years, in addition to the penalty for 
the underlying offense. If someone is convicted of a second offense 
that is prohibited by the act, that person would face an additional 
penalty of up to 20 years.
  This bill sends a strong and clear message to drug dealers--if you 
flavor or candy up your drugs to try to entice our children, there will 
be a very heavy price to pay. It will help stop drug dealers from 
engaging in these activities, and punish them appropriately if they 
don't.
  The Senate passed a similar version of this legislation in the 111th 
Congress, but it was not considered in the House. This year, I am 
pleased to have the support of many of the leading national law 
enforcement organizations as we try to get this bill over the finish 
line: the Major Cities Chiefs Association, the Fraternal Order of 
Police, the Community Anti-Drug Coalitions of America, the Major County 
Sheriffs' Association, the Federal Law Enforcement Officers 
Association, the National HIDTA Directors Association,

[[Page S7962]]

and the National District Attorneys Association have endorsed the 
legislation. They are on the front lines working to keep these drugs 
out of our communities, and I am proud to have their support.
  I urge my colleagues to join me in supporting this bill.
  Mr. President, I ask unanimous consent that 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. 1686

       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 ``Saving Kids From Dangerous 
     Drugs Act of 2013''.

     SEC. 2. OFFENSES INVOLVING CONTROLLED SUBSTANCES MARKETED TO 
                   MINORS.

       Section 401 of the Controlled Substances Act (21 U.S.C. 
     841) is amended by adding at the end the following:
       ``(i) Offenses Involving Controlled Substances Marketed to 
     Minors.--
       ``(1) Unlawful act.--Except as authorized under this title, 
     including paragraph (3), it shall be unlawful for any person 
     at least 18 years of age to--
       ``(A) knowingly or intentionally manufacture or create a 
     controlled substance listed in schedule I or II that is--
       ``(i) combined with a beverage or candy product;
       ``(ii) marketed or packaged to appear similar to a beverage 
     or candy product; or
       ``(iii) modified by flavoring or coloring; and
       ``(B) know, or have reasonable cause to believe, that the 
     combined, marketed, packaged, or modified controlled 
     substance will be distributed, dispensed, or sold to a person 
     under 18 years of age.
       ``(2) Penalties.--Except as provided in section 418, 419, 
     or 420, any person who violates paragraph (1) of this 
     subsection shall be subject to--
       ``(A) an additional term of imprisonment of not more than 
     10 years for a first offense involving the same controlled 
     substance and schedule; and
       ``(B) an additional term of imprisonment of not more than 
     20 years for a second or subsequent offense involving the 
     same controlled substance and schedule.
       ``(3) Exceptions.--Paragraph (1) shall not apply to any 
     controlled substance that--
       ``(A) has been approved by the Secretary under section 505 
     of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355), 
     if the contents, marketing, and packaging of the controlled 
     substance have not been altered from the form approved by the 
     Secretary; or
       ``(B) has been altered at the direction of a practitioner 
     who is acting for a legitimate medical purpose in the usual 
     course of professional practice.''.

     SEC. 3. SENTENCING GUIDELINES.

       Pursuant to its authority under section 994 of title 28, 
     United States Code, and in accordance with this section, the 
     United States Sentencing Commission shall review its 
     guidelines and policy statements to ensure that the 
     guidelines provide an appropriate additional penalty increase 
     to the sentence otherwise applicable in Part D of the 
     Guidelines Manual if the defendant was convicted of a 
     violation of section 401(i) of the Controlled Substances Act, 
     as added by section 2 of this Act.

                          ____________________