[House Report 109-541]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-541
======================================================================
 
           INTERNET FREEDOM AND NONDISCRIMINATION ACT OF 2006

                                _______
                                

 June 29, 2006.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 5417]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 5417) to amend the Clayton Act with respect to 
competitive and nondiscriminatory access to the Internet, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Internet Freedom and Nondiscrimination 
Act of 2006''.

SEC. 2. PURPOSES.

  The purposes of this Act are to promote competition, to facilitate 
trade, and to ensure competitive and nondiscriminatory access to the 
Internet.

SEC. 3. AMENDMENTS TO THE CLAYTON ACT.

  The Clayton Act (15 U.S.C. 12 et seq.) is amended--
          (1) by redesignating section 28 as section 29,
          (2) by inserting after section 27 the following:
            ``discrimination by broadband network providers
  ``Sec. 28. (a) It shall be unlawful for any broadband network 
provider--
          ``(1) to fail to provide its broadband network services on 
        reasonable and nondiscriminatory terms and conditions such that 
        any person can offer or provide content, applications, or 
        services to or over the network in a manner that is at least 
        equal to the manner in which the provider or its affiliates 
        offer content, applications, and services, free of any 
        surcharge on the basis of the content, application, or service;
          ``(2) to refuse to interconnect its facilities with the 
        facilities of another provider of broadband network services on 
        reasonable and nondiscriminatory terms or conditions;
          ``(3)(A) to block, to impair, to discriminate against, or to 
        interfere with the ability of any person to use a broadband 
        network service to access, to use, to send, to receive, or to 
        offer lawful content, applications or services over the 
        Internet; or
          ``(B) to impose an additional charge to avoid any conduct 
        that is prohibited by this subsection;
          ``(4) to prohibit a user from attaching or using a device on 
        the provider's network that does not physically damage or 
        materially degrade other users' utilization of the network; or
          ``(5) to fail to clearly and conspicuously disclose to users, 
        in plain language, accurate information concerning any terms, 
        conditions, or limitations on the broadband network service.
  ``(b) If a broadband network provider prioritizes or offers enhanced 
quality of service to data of a particular type, it must prioritize or 
offer enhanced quality of service to all data of that type (regardless 
of the origin or ownership of such data) without imposing a surcharge 
or other consideration for such prioritization or enhanced quality of 
service.
  ``(c) Nothing in this section shall be construed to prevent a 
broadband network provider from taking reasonable and nondiscriminatory 
measures--
          ``(1) to manage the functioning of its network, on a 
        systemwide basis, provided that any such management function 
        does not result in discrimination between content, 
        applications, or services offered by the provider and 
        unaffiliated provider;
          ``(2) to give priority to emergency communications;
          ``(3) to prevent a violation of a Federal or State law, or to 
        comply with an order of a court to enforce such law;
          ``(4) to offer consumer protection services (such as parental 
        controls), provided that a user may refuse or disable such 
        services;
          ``(5) to offer special promotional pricing or other marketing 
        initiatives; or
          ``(6) to prioritize or offer enhanced quality of service to 
        all data of a particular type (regardless of the origin or 
        ownership of such data) without imposing a surcharge or other 
        consideration for such prioritization or quality of service.
  ``(d) For purposes of this section--
          ``(1) the term `affiliate' means--
                  ``(A) a person that directly or indirectly owns, 
                controls, is owned or controlled by, or is under the 
                common ownership or control with another person; or
                  ``(B) a person that has a contract or other 
                arrangement with a content or service provider 
                concerning access to, or distribution of, such content 
                or such service;
          ``(2) the term `broadband network provider' means a person 
        engaged in commerce that owns, controls, operates, or resells 
        any facility used to provide broadband network service to the 
        public, by whatever technology and without regard to whether 
        provided for a fee, in exchange for an explicit benefit, or for 
        free;
          ``(3) the term `broadband network service' means a 2-way 
        transmission service that connects to the Internet and 
        transmits information at an average rate of at least 200 
        kilobits per second in at least one direction, irrespective of 
        whether such transmission is provided separately or as a 
        component of another service; and
          ``(4) the term `user' means a person who takes and uses 
        broadband network service, whether provided for a fee, in 
        exchange for an explicit benefit, or for free.'', and
          (3) by amending subsection (a) and the 1st sentence of 
        subsection (b) of section 11 by striking ``and 8'' and 
        inserting ``8, and 28''.

                          Purpose and Summary

    H.R. 5417, the ``Internet Freedom and Nondiscrimination Act 
of 2006,'' preserves an antitrust remedy for anticompetitive 
and discriminatory practices by broadband service providers. As 
reported by the Committee on Energy and Commerce, H.R. 5252, 
the ``COPE'' Act, vests ``exclusive'' authority in the Federal 
Communications Commission to adjudicate complaints alleging 
violations of network neutrality principles. This exclusive 
grant may be interpreted to displace the application of the 
antitrust laws to remedy anticompetitive and discriminatory 
misconduct by broadband network providers.
    H.R. 5417 reasserts an antitrust remedy for anticompetitive 
conduct in which the broadband network provider: (1) fails to 
provide network services on reasonable and nondiscriminatory 
terms; (2) refuses to interconnect with the facilities of other 
network providers on a reasonable and nondiscriminatory basis; 
(3) blocks, impairs or discriminates against a user's ability 
to receive or offer lawful content; (4) prohibits a user from 
attaching a device to the network that does not damage or 
degrade the network; or (5) fails to disclose to users, in 
plain terms, the conditions of the broadband service. The 
legislation expressly permits a broadband network provider to 
take steps to manage the functioning and security of its 
network, to give priority to emergency communications, and to 
take steps to prevent violations of Federal and State law, or 
to comply with a court order. This legislation is not intended 
to diminish the ability of a broadband network provider to take 
any otherwise lawful actions to protect copyrighted works 
against infringement or to limit infringement on the provider's 
broadband network. In addition, the legislation does not 
represent a ``regulatory'' imposition on broadband network 
providers. Rather, the legislation reaffirms an antitrust 
remedy for anticompetitive conduct by broadband network 
providers in order to ensure that the dominant market power of 
broadband network providers is not employed in a manner that 
assaults the pro-competitive, nondiscriminatory architecture 
that has been a defining feature of the Internet's success.

                Background and Need for the Legislation


            JUDICIARY COMMITTEE ROLE IN TELECOM COMPETITION

    Since 1957, the Committee on the Judiciary has played a 
central role in promoting competition in the telecom industry. 
The Judiciary Committee's involvement in promoting competition 
in the telecommunications marketplace dates back nearly a half 
century when the Committee held oversight hearings to examine 
the monopoly power that AT&T wielded because of its control of 
the local exchange and the Department of Justice's efforts to 
limit that power through antitrust enforcement.\1\
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    \1\ See The Consent Decree Program of the Department of Justice; 
Hearings Before the Subcommittee on Antitrust of the House Committee on 
the Judiciary, 85th Cong. (1957 and 1958); Report of the Antitrust 
Subcommittee on the Consent Decree Program of the Department of 
Justice, 86th Cong. (1959).
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    Section 1 of the Sherman Act of 1890 prohibits ``every 
contract, combination . . . or conspiracy, in restraint of 
trade or commerce among the several States.'' \2\ Section 2 of 
the Sherman Act provides that it is a violation of the 
antitrust laws to ``monopolize, or attempt to monopolize, or 
combine or conspire with any other person or persons, to 
monopolize any part of the trade or commerce among the several 
States, or with foreign nations.'' \3\ The principled 
application of the antitrust laws has served as the primary 
catalyst for the structural changes that have produced 
competitive gains and expanded consumer choice in the 
telecommunications field. The legal basis for the elimination 
of Ma Bell's national telephone monopoly was predicated in the 
antitrust laws. While the former AT&T had operated in a highly-
intensive Federal and State regulatory regime for decades, the 
government relied on the antitrust laws to provide the robust 
pro-competitive remedy that regulation could not and does not 
alone provide. Specifically, the Justice Department 
successfully alleged that AT&T unfairly limited competition 
through exclusionary conduct in violation of the Sherman Act. 
This anticompetitive conduct was manifested by ``manipulation 
of the terms and conditions under which competitors are 
permitted to interconnect with AT&T's existing services and 
facilities, including those of the local exchange operators.'' 
\4\ The Department also successfully alleged that AT&T 
``imposed a number of cumbersome and unnecessary technical and 
operational practices on its competitors which increased their 
costs and lowered the quality of their service, in marked 
contrast to the efficient interconnection arrangements made 
available to AT&T's own . . . connections.'' \5\ In the early 
1990s, the Committee conducted several legislative and 
oversight hearings concerning the market dominance exercised by 
the remnants of the former AT&T monopoly, and in 1995, the 
Committee conducted hearings to examine the Justice 
Department's responsibility to aggressively monitor competition 
in this field.
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    \2\ 15 U.S.C. Sec. 1.
    \3\ 15 U.S.C. Sec. 2.
    \4\ See Plaintiff's Memorandum in Opposition to Defendant's Motion 
for Involuntary Dismissal Under Rule 41(b), United States v. AT&T Co., 
No. 74-1698 (D.D.C., filed Aug. 16, 1981).
    \5\ Id. at 79.
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   TELECOMMUNICATIONS ACT OF 1996--THE ROLE OF THE ANTITRUST LAWS IN 
                         PROTECTING COMPETITION

    The failure of the 1982 consent decree to produce robust 
competition lent impetus to congressional passage of 
legislation that was comprehensive and deregulatory in scope. 
The findings section of the 1996 Act states that its purpose is 
``to promote competition and reduce regulation in order to 
secure lower prices and higher quality services for American 
telecommunications consumers and encourage the rapid growth of 
telecommunications technologies.'' The 1996 Act further states 
that Congress intended ``to provide for a pro-competitive . . . 
national policy framework designed to accelerate rapidly 
private sector deployment of advanced telecommunications and 
information technologies and services to all Americans by 
opening all telecommunications markets to competition.'' \6\
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    \6\ Id.
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    In order to reaffirm the centrality of the antitrust laws 
in the liberalized regulatory regime established by the 1996 
Act, the Judiciary Committee and Congress preserved an explicit 
antitrust savings clause in the legislation. Specifically, the 
antitrust savings clause contained in Sec. 601(c)(1) of the 
1996 Act provided that: `` . . . Nothing in this Act or the 
amendments made by this Act shall be construed to modify, 
impair, or supersede the applicability of any of the antitrust 
laws. . . . This Act and the amendment made by this Act shall 
not be construed to modify, impair, or supersede Federal, 
State, or local law unless expressly so provided in such act or 
amendments.'' \7\
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    \7\ Id.
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    The legislative record surrounding consideration of the 
1996 Act emphasizes the crucial role of the antitrust laws in 
promoting competition and enhancing consumer welfare in the 
marketplace. The Joint Explanatory Statement of the Conference 
Committee stated that the antitrust savings clause: ``prevents 
affected parties from asserting that the bill impliedly 
preempts other laws.'' \8\ Members of both bodies affirmed this 
principle. Senator Thurmond stated: ``[The 1996 Act contains 
an] unequivocal antitrust savings clause that explicitly 
maintains the full force of the antitrust laws in this vital 
industry. Application of the antitrust laws is the most 
reliable, time-tested means of ensuring that competition, and 
the innovation that it fosters, can flourish to benefit 
consumers and the economy.'' \9\ Ranking Member Conyers 
observed: ``[t]he bill contains an all-important antitrust 
savings clause which ensures that any and all 
telecommunications mergers and anti-competitive activities . . 
. [b]y maintaining the role of the antitrust laws, the bill 
helps to ensure that the Bells cannot use their market power to 
impede competition and harm consumers.'' \10\ Senator Leahy 
stated: ``[r]elying on antitrust principles is vital to ensure 
that the free market will work to spur competition and reduce 
government involvement in the industry.'' \11\ In addition, the 
FCC formally acknowledged that its regulations did not provide 
the ``exclusive remedy'' for anti-competitive conduct.\12\ The 
FCC expressly concluded that: ``parties have several options 
for seeking relief if they believe that a carrier has violated 
the standards under section 251 or 252 . . . . [W]e clarify . . 
. that nothing in sections 251 and 252 or our implementing 
regulations is intended to limit the ability of persons to seek 
relief under the antitrust laws.'' \13\ Finally, former FCC 
Chairman Powell concluded that ``[g]iven the vast resources of 
many of the nation's ILECs,'' the FCC's current fining 
authority of $1.2 million per offense ``is insufficient to 
punish and deter violations in many instances.'' \14\
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    \8\ Joint Explanatory Statement of the Committee of Conference, S. 
652, H.R. Rep. No. 104-458, S. Rep. No. 104-230, at 201 (1996) 
(``Conference Report'').
    \9\ 142 Cong. Rec. S687-01 (daily ed. February 1, 1996) (statement 
of Sen. Thurmond).
    \10\ 142 Cong. Rec. H1145-06 (daily ed. February 1, 1996) 
(statement of Rep. Conyers).
    \11\ 141 Cong. Rec. S18586-01 (daily ed. December 14, 1995) 
(statement of Sen. Leahy).
    \12\ First Report and Order, In re: Implementation of the Local 
Competition Provisions in the Telecommunications Act of 1996, 11 
F.C.C.R. 15499, para.124 (Aug. 8, 1996) (R2-7-A174).
    \13\ Id. at para. 129 (R2-7-A175).
    \14\ Letter from Chairman Powell to House and Senate Appropriations 
Committees, May 4, 2001, available at: http://www.fcc.gov/Bureaus/
Common_Carrier/News_Releases/2001/nrcc 0116.html.
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  RECENT COMMITTEE EFFORTS TO PRESERVE AND PROMOTE COMPETITION IN THE 
                      TELECOMMUNICATIONS INDUSTRY

    In recent years, the Committee has conducted a number of 
hearings and considered legislation relating to 
telecommunications competition. On May 22, 2001, the Committee 
conducted a legislative hearing examining H.R. 1698, the 
``American Broadband Competition Act of 2001,'' and H.R. 1697, 
the ``Broadband Competition and Incentives Act of 2001.'' On 
June 5, 2001, the Committee conducted a legislative hearing on 
H.R. 1542, the ``Internet Freedom and Broadband Deployment Act 
of 2001.'' Because the legislation did not contain the 
safeguards necessary to preserve competition in the broadband 
industry, the Committee adversely reported it.\15\
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    \15\ H.R. Rep. No. 107-83, Part 2.
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    On July 24, 2003, the Task Force on Antitrust conducted an 
oversight hearing entitled ``Antitrust Enforcement Agencies: 
The Antitrust Division of the Department of Justice and Bureau 
of Competition.'' On November 19, 2003, the Committee conducted 
an oversight hearing entitled ``Saving the Savings Clause: 
Congressional Intent, the Trinko Case and the Role of the 
Antitrust Law in Promoting Competition in the Telecom Sector.'' 
On July 23, 2004, the Committee conducted an oversight hearing 
on ``Regulatory Aspects of Voice Over the Internet Protocol 
(VoIP).'' In addition, on April 20, 2005, the Committee 
conducted an oversight hearing examining ``Industry Competition 
and Consolidation: The Telecom Marketplace Nine Years After the 
Telecom Act.'' Most recently, the Committee adopted a 
Resolution Establishing a Task Force on Telecom and Antitrust. 
This Task Force conducted an oversight hearing examining the 
antitrust implications of network neutrality titled: ``Network 
Neutrality: Competition, Innovation, and Nondiscriminatory 
Access.'' This hearing helped establish the legislative record 
demonstrating the need for H.R. 5417.

 THE ``INTERNET REVOLUTION'' AND MARKET FEATURES OF BROADBAND INTERNET 
             ACCESS: THE NEED FOR A CLEAR ANTITRUST REMEDY

    Over the last decade, the Internet has revolutionized the 
manner in which Americans access and transmit a broad range of 
information and consume goods. The advent of high speed 
(broadband) Internet access has dramatically enhanced the 
ability of Americans to access this medium. Many credit the 
rapid rise of the Internet to the open architecture that 
defines it. There is broad recognition that the Internet will 
further expand the ways in which Americans live, work, and 
play.\16\ However, recent actions taken by the FCC and Supreme 
Court coupled with increased consolidation of network 
providers, have heightened the risk of anticompetitive behavior 
in the telecom marketplace.
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    \16\ Remarks of Michael K. Powell, Chairman, Federal Communications 
Commission, at the Silicon Flatirons Symposium on ``The Digital 
Broadband Migration: Toward a Regulatory Regime for the Internet Age,'' 
University of Colorado School of Law, February 8, 2004.
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    Two Supreme Court decisions have particularly had the 
effect of significantly weakening remedies available either 
under the antitrust laws or through regulatory actions by the 
FCC. The first, Verizon v. Trinko, 540 US 398 (2004), in which 
the Supreme Court observed that the ``regulatory framework that 
exists in this case demonstrates how, in certain circumstances, 
`regulations significantly diminished the likelihood of major 
antitrust harm.' '' The Court then concluded that ``against the 
slight benefits of antitrust intervention here, we must weigh a 
realistic assessment of its costs.'' This is precisely the 
judicial analysis that the antitrust savings clause in the 1996 
Act expressly precluded. When viewed in light of H.R. 5252's 
exclusive grant of authority to adjudicate violations of 
network neutrality principles, the threat to the continued 
application of the antitrust laws to ensure against 
anticompetitive content discrimination by broadband providers 
is both clear and obvious.
    In addition, the Supreme Court's decision in NCTA v. Brand 
X, upholding the FCC's determination that cable modem service 
is an information service, and the FCC's subsequent decision to 
classify LEC broadband Internet access as an ``information 
service'' suggests that antitrust agencies such as the Federal 
Trade Commission (which is statutorily obligated to defer to 
FCC oversight in connection with oversight of services 
classified as ``common carrier'' offerings) may have an 
expanded role to play in setting forth policies that protect 
consumers against unlawful business practices and illegal 
restraints of trade. Indeed, the FTC recently concluded that, 
``in light of [Brand X], the [FTC] views the provision of cable 
modem services as non-common carrier service subject to the FTC 
Act's prohibitions on unfair or deceptive acts and practices 
and on unfair methods of competition.'' \17\
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    \17\ Letter from Deborah Platt Majoras, Chairman, Federal Trade 
Commission to F. James Sensenbrenner, Chairman, House of 
Representatives Committee on the Judiciary (Apr. 14, 2006) (on file 
with the House Committee on the Judiciary).
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    According to an FCC report released in April of 2006 
containing the most recent information on the market features 
of the high speed Internet access market, Americans have 
essentially two choices for broadband Internet access.\18\ 
According to this FCC data, 98.8 percent of the ``advanced 
services lines'' Americans utilize for Internet access are 
provided by either cable companies or ILECs. Cable modem 
service represents 64.9 percent of these lines, while 33.9 
percent are DSL connections. Consumer options for ``high speed 
lines'' are also limited--98.2 percent of Americans accessing 
high speed lines by connecting to cable modem service or ILEC 
lines. Cable modem service represented 61 percent of these 
lines while 37.2 percent were provided by ILECs. The data also 
indicates that many Americans (particularly in rural areas) 
have only one choice of broadband service, and some Americans 
have none. As a result, most Americans are subject to a 
broadband duopoly, many to a broadband monopoly, and some 
Americans (particularly in rural areas) have no access to 
broadband Internet. Hence, broadband providers exercise 
considerable market power in most parts of the country, 
dominant control in others, and monopoly control in the 
rest.\19\
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    \18\ Federal Communications Commission, High Speed Services for 
Internet Access: Status as of June 30, 2005, (2006), available at 
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-264744A1.pdf.
    \19\ Id.
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    The exercise of market power to engage in discriminatory or 
unlawful restraints on commerce or trade is clearly the 
province of the antitrust laws. Section 2 of the Sherman Act 
prohibits monopolization, attempts to monopolize, and 
combinations or conspiracies to monopolize.\20\ Monopolization 
or attempts to monopolize are demonstrated by anticompetitive 
or exclusionary conduct.\21\ The Supreme Court held that ``if a 
firm has been `attempting to exclude rivals on some basis other 
than efficiency,' it is fair to characterize its behavior as 
predatory.'' \22\ The D.C. Circuit Court has also held that 
``[t]o be condemned as exclusionary, a monopolist's act must 
have an `anti-competitive effect.' That is, it must harm the 
competitive process and thereby harm consumers.'' \23\ The 
market power of broadband providers can be utilized to 
unlawfully restrain trade, undermine the competitive process, 
and limit the ability of consumers to access online content, 
goods, or services of their choice in a nondiscriminatory 
manner, and this conduct has already occurred.\24\
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    \20\ 15 U.S.C. Sec. 2.
    \21\ Phillip E. Areeda & Herbert Ovenkamp, Antitrust Law: An 
Analysis of Antitrust Principles and Their Applications para. 651 (2d 
ed. 2002).
    \22\ See Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 
605 (1985).
    \23\ See United States v. Microsoft Corp., 253 F.3d 34, 58 (D.C. 
Cir. 2001).
    \24\ See In the Matter of Madison River Communications, available 
at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-543A2.pdf. 
See also, http://static.publicknowledge.org/pdf/pk-net-neutrality-
whitep-20060206.pdf, pps. 19-24.
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    Firms that control networks that provide access to the 
Internet may exercise market power to discriminate against 
rival services or competing technologies, or limit the ability 
of consumers to access online information or services in a 
neutral manner. Abuse of this market power threatens the open 
architecture that has been a key feature of the Internet's 
success and utility. H.R. 5417 will help to ensure that those 
injured by anticompetitive discriminatory conduct by broadband 
service providers are provided a cause of action under the 
Clayton Act and an administrative remedy through antitrust 
enforcement agencies.

        NETWORK NEUTRALITY--DEFINITION, SUPPORT, AND OPPOSITION

    While significant efforts have been made to confuse the 
definition, ``network neutrality'' refers to the fundamental 
architecture of the Internet that allows for ``end-to-end'' 
communications that are both uninhibited and transmitted 
without priority based on content. The open nature of the 
Internet has served as a catalyst for innovations mainly from 
those with little connection to the owners of the physical 
network itself.\25\
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    \25\ Network Neutrality: Hearing Before the S. Comm. on Commerce, 
Science, and Transportation, 109th Cong. (2006) (statement of Lawrence 
Lessig, Professor of Law at Stanford Law School).
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    Former FCC Chairman Michael Powell stressed the importance 
of net neutrality when he enunciated broad ``Internet 
Freedoms'' in a speech at the University of Colorado Law 
School. As Chairman Powell described, these Internet freedoms 
include:
          (1) Freedom to Access Content: Consumers should have 
        access to their choice of legal content;
          (2) Freedom to Use Applications: Consumers should be 
        able to run applications of their choice;
          (3) Freedom to Attach Personal Devices: Consumers 
        should be permitted to attach any devices they choose 
        to the connection in their homes; and
          (4) Freedom to Obtain Service Plan Information: 
        Consumers should receive meaningful information 
        regarding their service plans.\26\
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    \26\ Id.
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    Chairman Powell explained that these principles should not 
preclude network providers from ensuring a quality broadband 
experience and that reasonable limits could be allowed in 
circumstances where service contracts exist. However, Powell 
was insistent that these limits be both explicitly stated and 
as minimal as necessary in order to foster an environment that 
allows for the greatest amount of innovation. ``Since no one 
can know for sure which `killer' applications will emerge to 
drive deployment of the next generation high-speed 
technologies, the industry must let the market work and allow 
consumers to run applications and attach devices unless they 
exceed service plan limitations or harm the provider's 
network.'' \27\
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    \27\ Supra at 16.
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                      ADVOCATES OF NET NEUTRALITY

    The concept of net neutrality has been widely supported by 
traditional entertainment companies, providers of Internet-
based applications, software companies, content providers, and 
device manufacturers. These entities argue that net neutrality 
is a fundamental and necessary component of their willingness 
to invest significant amounts of capital necessary to promote 
innovation and free market competition. Advocates of net 
neutrality emphasize that meaningful remedies for network 
neutrality violators are necessary to preserve competition and 
consumer choice. These groups also assert that network 
providers not only have a clear market incentive to 
discriminate, there is a documented record of such abuse.\28\ 
Advocates also point to regulatory inaction by the FCC and 
highlight insufficiencies in current law to curb abuse. Groups 
in favor of Internet nondiscrimination are broad and diverse, 
ranging from the American Association of Retired Persons, 
Financial Service Roundtable, Gun Owners of America, the 
Christian Coalition, National Religious Broadcaster, content 
providers such as Google and Microsoft, Intel and others.\29\
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    \28\ John Windhausen, Good Fences Make Bad Broadband, Public 
Knowledge White Paper 17-22, (2006), http://www.publicknowledge.org/
content/paperspk-net-neutrality-whitep-20060206.
    \29\ See Savethenet.com.
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                      OPPONENTS OF NET NEUTRALITY

    Providers such as incumbent local exchange carriers and 
some cable companies have argued that the proponents of net 
neutrality have raised only speculative concerns. For example, 
AT&T and others have defended the practice of access-
tiering.\30\ Access tiering is ``any policy by network owners 
to condition content or service providers' right to provide 
content or service to the network upon the payment of some fee. 
These fees are independent of basic Internet access fees. . . . 
`[A]ccess tiering' adds an additional tax on network innovators 
based upon the particular service being offered.'' \31\ The 
network providers argue that by instituting the concept of 
access-tiering they are addressing the possibility of network 
congestion. Some have proposed that to remedy the possibility 
of congestion, network providers institute a fee based on the 
amount of network congestion the user causes. However, the 
transactional costs of this arrangement render this type of fee 
impractical. The proposed solution by the network providers is 
to assess which activities are most likely to account for 
significant portions of the bandwidth and apportion fees 
accordingly, which is essentially the theory behind access 
tiering. Stanford Law Professor Lawrence Lessig counters that 
access tiering may pose some serious issues. He states:
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    \30\ See Telcos Propose Web Tiers, Red Herring (January 31, 2006)
    \31\ Supra at 3.

          Access-tiering will create an obvious incentive among 
        the effective duopoly that now provides broadband 
        service to most Americans. By effectively auctioning 
        off lanes of broadband service, this form of tiering 
        will restrict the opportunity of many to compete in 
        providing new Internet service. For example, there are 
        many new user generated video services on the Internet. 
        . . . The incentives in a world of access-tiering would 
        be to auction to the highest bidders the quality 
        service necessary to support video service, and leave 
        to the rest insufficient bandwidth to compete. That may 
        benefit established companies, but it will only burden 
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        new innovators.

    The broadband network service providers (primarily cable or 
telephone companies) have also argued that network neutrality 
is a ``solution in search of a problem.'' They assert that 
there is no need to establish clear prohibitions on content 
discrimination by broadband providers because there has been no 
extensive documentation of abuse. Despite the network service 
providers' claims, there have been several accounts of 
discriminatory behavior. The most notable example of abuse 
involved the Madison River Telephone Company obstruction of 
access to Voice-Over Internet Protocol (VoIP) services provided 
by Vonage. In this case the FCC initiated an investigation of 
allegations that Madison River violated non-discriminatory 
obligations contained in section 201(b) of the Communications 
Act. However, this case demonstrated that the FCC lacks 
explicit regulatory or enforcement authority to prevent this 
type of discriminatory behavior.\32\
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    \32\ Madison River Communications, LLC, Consent Decree File No. EB-
05-IH-0110, available at http://hraunfoss.fcc.gov/edocs_public/
attachmatch/DA-05-5423A2.pdf.
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                  INDUSTRY COMMENTS ON NET NEUTRALITY

    The following are excerpted quotations from executives 
within the telecommunications industry commenting on the issue 
of net neutrality.
    SBC Chief Executive Officer, Ed Whitacre, was quoted in the 
Financial Times as stating, ``I think the content providers 
should be paying for the use of the network--obviously not the 
piece from the customer to the network, which has already been 
paid for by the customer in Internet access fees--but for 
accessing the so-called Internet cloud . . . . If someone wants 
to transmit a high quality service with no interruptions and 
`guaranteed this, guaranteed that', they should be willing to 
pay for that . . . . Now they might pass it on to their 
customers who are looking at a movie, for example. But that 
ought to be a cost of doing business for them. They shouldn't 
get on [the network] and expect a free ride.'' \33\
---------------------------------------------------------------------------
    \33\ Paul Taylor, AT&T Chief Warns on Internet Costs, Fin. Times, 
Jan. 31, 2006, available at http://news.ft.com/cms/s/3ced445e-91c5-
11da-bab9-0000779e2340.html.
---------------------------------------------------------------------------
    Mr. Whitacre was also quoted in Business Week in response 
to a question regarding his speculation about future 
competition from Internet upstarts.

          How do you think they're going to get to customers? 
        Through a broadband pipe. Cable companies have them. We 
        have them. Now what they would like to do is use my 
        pipes free, but I ain't going to let them do that 
        because we have spent this capital and we have to have 
        a return on it. So there's going to have to be some 
        mechanism for these people who use these pipes to pay 
        for the portion they're using. Why should they be 
        allowed to use my pipes? The Internet can't be free in 
        that sense, because we and the cable companies have 
        made an investment and for a Google or Yahoo! or Vonage 
        or anybody to expect to use these pipes [for] free is 
        nuts!'' \34\

    \34\ Patricia O'Connell, at SBC, It's All About ``Scale and 
Scope,'' Business Week, Nov. 7, 2005, available at http://
www.businessweek.com/@@n34h*IUQu7KtOwgA/magazine/content/05_45/
b3958092.htm.
---------------------------------------------------------------------------
    BellSouth Chief Technical Officer, William Smith, confirmed 
in MarketWatch that BellSouth ``is pursuing discussions with 
Internet content companies to levy charges to reliably and 
speedily deliver their content and services.'' Smith was quoted 
as characterizing such fees as ``the shipping business of the 
digital age.'' \35\
---------------------------------------------------------------------------
    \35\ Frank Barnako, BellSouth Wants New Fees, MarketWatch, Jan. 16, 
2006, available at http://www.marketwatch.com/News/Story/
Story.aspx?guid=7B02432D2D-1EE0-4037-A15F-
54B748D6CF26%7D&siteid=mktw&dist=.
---------------------------------------------------------------------------
    Qwest Chief Executive Officer, Richard Notebaert, asserted 
in CNET News.com that online companies should be allowed to 
work out deals with network providers in an effort to get a leg 
up over their competitors. ``Would this give some content 
providers an advantage over others? Well, yeah. We're all 
trying to provide a little bit of differentiation for a 
competitive edge. That's what business is about.'' \36\
---------------------------------------------------------------------------
    \36\ Marguerite Reardon, Qwest CEO Supports Tiered Internet, CNET 
News.com, Mar. 15, 2006, available at http://news.com.com/
Qwest+CEO+supports+tiered+Internet/2100-1034_3-6050109.html.
---------------------------------------------------------------------------
    And finally, Verizon Chief Executive Officer, Ivan 
Seidenberg, was quoted by the Wall Street Journal as aligning 
with AT&T in pursuing agreements that favored certain content 
providers over others, ``[W]e have to make sure [content 
providers] don't sit on our network and chew up our capacity.'' 
\37\
---------------------------------------------------------------------------
    \37\ Dionne Searcey and Amy Schatz, Phone Companies Set Off a 
Battle Over Internet Fees--Content Providers May Face Charges for Fast 
Access; Billing the Consumer Twice?, Wall Street Journal, Jan 6. 2006.
---------------------------------------------------------------------------

                        Committee Consideration

    On May 25, 2006, the Committee met in open session and 
ordered favorably reported the bill H.R. 5417 with an amendment 
by rollcall vote of 20 to 13 with one vote as present, a quorum 
being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee sets forth the 
following rollcall votes that occurred during the Committee's 
consideration of H.R. 5417:
    Final Passage. The motion to report the bill, H.R. 5417, 
favorably as amended to the House was agreed to by a rollcall 
vote of 20 yeas to 13 nays, with one member voting present.

                      ROLLCALL NO. 5 DATE: 5-25-06


                       COMMITTEE ON THE JUDICIARY


                     U.S. HOUSE OF REPRESENTATIVES


                       109th CONGRESS 2nd SESSION

    SUBJECT: Motion to Favorably Report H.R. 5417, as amended, 
which was agreed to by a rollcall vote of 20 ayes, 13 nays, and 
1 present.

------------------------------------------------------------------------
                                       Ayes        Nays        Present
------------------------------------------------------------------------
MR. HYDE
------------------------------------------------------------------------
MR. COBLE                           ..........  X
------------------------------------------------------------------------
MR. SMITH                           ..........  X
------------------------------------------------------------------------
MR. GALLEGLY                        ..........  X
------------------------------------------------------------------------
MR. GOODLATTE                       X
------------------------------------------------------------------------
MR. CHABOT                          ..........  X
------------------------------------------------------------------------
MR. LUNGREN                         X
------------------------------------------------------------------------
MR. JENKINS                         X
------------------------------------------------------------------------
MR. CANNON                          X
------------------------------------------------------------------------
MR. BACHUS                          ..........  X
------------------------------------------------------------------------
MR. INGLIS                          X
------------------------------------------------------------------------
MR. HOSTETTLER                      ..........  X
------------------------------------------------------------------------
MR. GREEN                           ..........  X
------------------------------------------------------------------------
MR. KELLER                          ..........  X
------------------------------------------------------------------------
MR. ISSA                            ..........  X
------------------------------------------------------------------------
MR. FLAKE
------------------------------------------------------------------------
MR. PENCE
------------------------------------------------------------------------
MR. FORBES                          ..........  X
------------------------------------------------------------------------
MR. KING                            ..........  X
------------------------------------------------------------------------
MR. FEENEY                          ..........  X
------------------------------------------------------------------------
MR. FRANKS                          ..........  X
------------------------------------------------------------------------
MR. GOHMERT
------------------------------------------------------------------------

------------------------------------------------------------------------
MR. CONYERS                         X
------------------------------------------------------------------------
MR. BERMAN                          X
------------------------------------------------------------------------
MR. BOUCHER                         X
------------------------------------------------------------------------
MR. NADLER                          X
------------------------------------------------------------------------
MR. SCOTT                           X
------------------------------------------------------------------------
MR. WATT                            ..........
------------------------------------------------------------------------
MS. LOFGREN                         X
------------------------------------------------------------------------
MS. JACKSON LEE                     X
------------------------------------------------------------------------
MS. WATERS                          X
------------------------------------------------------------------------
MR. MEEHAN
------------------------------------------------------------------------
MR. DELAHUNT                        ..........  ..........  X
------------------------------------------------------------------------
MR. WEXLER                          X
------------------------------------------------------------------------
MR. WEINER                          X
------------------------------------------------------------------------
MR. SCHIFF                          X
------------------------------------------------------------------------
MS. SANCHEZ                         X
------------------------------------------------------------------------
MR. VAN HOLLEN                      X
------------------------------------------------------------------------
MRS. WASSERMAN SCHULTZ              X
------------------------------------------------------------------------

------------------------------------------------------------------------
MR. SENSENBRENNER, CHAIRMAN         X
------------------------------------------------------------------------
    TOTAL                           20          13          1
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 5417, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

H.R. 5417--Internet Freedom and Nondiscrimination Act of 2006

    Summary: H.R. 5417 would prohibit providers of Internet 
service from discriminating between different types of content, 
applications, or services when providing Internet access to 
their customers. Under the bill, the Department of Justice 
(DOJ) and the Federal Trade Commission (FTC) would enforce the 
bill's provisions by filing antitrust actions in federal court 
in the event of violations. Assuming appropriation of the 
necessary amounts, CBO estimates that implementing H.R. 5417 
would cost about $10 million over the 2007-2011 period. 
Enacting the bill would not affect direct spending or revenues.
    H.R. 5417 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA), but CBO estimates 
that the costs to state, local, and tribal governments, if any, 
would be small and would not exceed the threshold established 
in that act.
    H.R. 5417 would impose private-sector mandates as defined 
in UMRA on broadband service providers. Because of uncertainty 
about how the mandates would affect certain business practices, 
CBO cannot estimate whether the aggregate costs of all of the 
mandates in the bill would exceed the annual threshold 
established by UMRA for private-sector mandates ($128 million 
in 2006, adjusted annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 5417 is shown in the following table. 
The costs of this legislation fall within budget functions 370 
(commerce and housing credit) and 750 (administration of 
justice). For this estimate, CBO assumes that the bill will be 
enacted near the start of fiscal year 2007. Based on 
information provided by the FTC and DOJ, CBO estimates that 
implementing the bill would cost those agencies about $10 
million over the 2007-2011 period for the FTC and DOJ to 
enforce the bill's provisions regarding access to Internet 
services.

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2007     2008     2009     2010     2011
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level......................................        2        2        2        2        2
Estimated Outlays..................................................        2        2        2        2        2
----------------------------------------------------------------------------------------------------------------

    Estimated impact on state, local, and tribal governments: 
H.R. 5417 contains an intergovernmental mandate as defined in 
UMRA because it would prohibit providers of Internet services, 
some of which are intergovernmental entities, from charging 
additional fees for providing certain services and content. In 
general, state and local governments that provide services to 
access the Internet do not currently charge such fees nor do 
they have plans to do so in the future. Therefore, CBO 
estimates that the costs to intergovernmental entities, if any, 
would be small and would not exceed the threshold established 
in UMRA ($64 million in 2006, adjusted annually for inflation.)
    Estimated impact on the private sector:H.R. 5417 would 
impose private-sector mandates as defined in UMRA on broadband 
service providers. The bill defines broadband network service 
as a two-way transmission service that connects to the Internet 
and transmits information at an average rate of at least 200 
kilobits per second in at least one direction. The bill would 
impose mandates by amending the Clayton Act to make it unlawful 
for broadband service providers to:
           Provide broadband network services to any 
        provider of content, network applications, or services 
        in a discriminatory manner;
           Prevent users from attaching any device to 
        the network that does no harm to or otherwise degrades 
        the network;
           Interconnect with other broadband network 
        service providers on discriminatory terms or 
        conditions; or
           Use surcharges for enhanced quality of 
        service or prioritization.
    Because of uncertainty about how the mandates would affect 
certain business practices, CBO cannot estimate whether the 
aggregate costs of all of the mandates in the bill would exceed 
the annual threshold established by UMRA for private-sector 
mandates ($128 million in 2006, adjusted annually for 
inflation).

Prohibition on the sale of broadband network services on discriminatory 
        terms

    H.R. 5417 would amend the Clayton Act to make it illegal 
for broadband service providers ``to fail to provide its 
broadband network services on reasonable and nondiscriminatory 
terms and conditions such that any person can offer or provide 
content, applications, or services to or over the network in a 
manner that is at least equal to the manner in which the 
provider or its affiliates offer content, applications, and 
services, free of any surcharge on the basis of the content, 
application, or service . . .''
    Currently, cellular telephone providers offer proprietary 
content, such as ring-tones, music, and video clips. Most 
cellular networks do not yet meet the legislation's definition 
of broadband (a transmission of 200,000 kilobits per second in 
either direction), but the industry is investing in technology 
and facilities to reach that goal. It is unclear, however, how 
much of the proprietary content was delivered over the 
Internet. As cellular providers achieve broadband speeds, they 
would have to allow other content or service providers 
increased access to their networks and, consequently, to their 
subscribers under the bill.
    The costs of the mandate would include the expenditures 
necessary for converting systems to allow other providers to 
offer alternatives to the cellular phone company Internet-based 
proprietary services and products. CBO has no information about 
the future market size of the Internet-based proprietary 
content and services or the cost of allowing providers access 
to such a network. Consequently, CBO cannot estimate the cost 
of complying with this mandate.

Prohibition on restricting users from attaching devices to the network

    H.R. 5417 would amend the Clayton Act would make it 
unlawful for a broadband service provider ``to prohibit a user 
from attaching or using a device on the provider's network that 
does not physically damage or materially degrade other users' 
utilization of the network . . .''
    At present, cellular networks control which telephone 
handsets can attach to their networks. Telephone handsets are 
typically manufactured by large electronics companies and 
customized for each cellular network. The most important aspect 
of customization provides for the efficient use of the spectrum 
and the network for each cellular provider. Some aspects of 
customization, however, have nothing to do with the efficient 
operation of the cellular network but allow cellular providers 
to choose which features of the cellular telephone to make 
available to subscribers depending on their commercial 
strategy. This bill would limit the control of cellular service 
providers over the types of handsets that have access to their 
networks.
    According to Telecommunications Industry Association data, 
roughly 200 million handsets are attached to cellular networks 
in the United States. Not all handsets are broadband capable, 
but at least 170 million are capable of transmitting on the 
proprietary data networks and many provide access to the 
Internet. Industry experts project that many more such handsets 
will become broadband capable in the near term. Cellular 
companies providing such broadband services would be affected 
by this mandate.
    The direct costs of the mandate would include the 
expenditures necessary for operating the cellular telephone 
system using a wider array of handsets than are currently used 
by each network. According to engineering sources, the data are 
not currently available to determine the costs of complying 
with the mandate.

Prohibition on the interconnection with broadband providers on 
        discriminatory terms

    The bill would make it illegal ``to refuse to interconnect 
its facilities with the facilities of another provider of 
broadband network services on reasonable and nondiscriminatory 
terms or conditions. . . .'' Currently, the Internet service 
industry operates on a tiered charge system. Large providers of 
Internet services carry each other's traffic at no charge but 
charge the smaller companies for carrying their traffic. If 
H.R. 5417 were enacted, the large companies would no longer be 
allowed to charge small firms differently than larger firms for 
carriage. The contracts for carriage are currently negotiated 
by the firms individually and the terms of exchange are 
confidential. Consequently, CBO has no basis to estimate the 
cost of this mandate.

Prohibition on surcharges for enhanced quality of service

    The bill also would require a broadband network provider, 
if it offers enhanced quality of service for any type of data, 
to offer enhanced quality of service for all data of that type, 
regardless of the ownership of the data, without imposing a 
surcharge.
    At present, few if any broadband network providers offer 
enhanced quality of service on open networks. Enhanced quality 
of service is offered regularly on smaller private networks, 
but rarely, if ever, on public networks, most notably the 
Internet. The principal reason is that thousands of networks 
have connected to the Internet and no single provider controls 
more than a fraction of the Internet traffic routes worldwide. 
The delivery of messages and packets on the Internet depends on 
the coordination of many providers with different operating 
conditions on their own networks and on the interconnections 
between networks. For this reason, most Internet service 
providers do not currently offer such priority services. The 
cost of the mandate would be the loss in net income from not 
being able to use a surcharge for certain services. CBO has no 
basis to estimate the cost of this mandate.
    Previous CBO estimate: On May 3, 2006, CBO transmitted a 
cost estimate for H.R. 5252, the Communications Opportunity, 
Promotion, and Enhancement Act of 2006, as ordered reported by 
the House Committee on Energy and Commerce on April 27, 2006. 
Title II of that bill contains provisions related to access to 
Internet service. Difference between these bills are reflected 
in CBO's cost estimates.
    Estimate prepared by: Federal Costs: Melissa Z. Petersen. 
Impact on State, Local, and Tribal Governments: Sarah Puro. 
Impact on the Private Sector: Philip Webre.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
5417, is intended to preserve an antitrust remedy for 
anticompetitive and discriminatory practices by broadband 
service providers.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in art. I, Sec. 8, of the Constitution.

               Section-by-Section Analysis and Discussion

    The following discussion describes the bill as reported by 
the Committee.

Sec. 1. Short title

    This section would provide that the legislation may be 
cited as the ``Internet Freedom and Nondiscrimination Act of 
2006.''

Sec. 2. Purposes

    This section would specify that the purposes of the Act are 
to promote competition, facilitate trade, and ensure 
competitive and non-discriminatory access to the Internet.

Sec. 3. Amendments to the Clayton Act

    Section 3(1) amends the Clayton Act by redesignating the 
existing section 28 as section 29. Section 3(2) inserts a new 
section 28 with the following provisions:
    Paragraph (a) of the new section would prohibit the 
following five actions by a broadband network provider: (1) 
refusing to provide to third parties on reasonable and 
nondiscriminatory terms any broadband network service that it 
provides to itself or any affiliate; (2) refusing to 
interconnect its facilities with those of another broadband 
network provider on reasonable and nondiscriminatory terms and 
conditions; (3) blocking, impairing, discriminating against, or 
interfering with any person's use of a broadband network 
service to access, use, send, receive, or offer lawful content, 
applications or services over the network or the Internet, or 
to impose any additional charge to avoid interference; (4) 
prohibiting a user from attaching any device to, or using any 
device in connection with, the operator's network that does not 
damage, make unauthorized use of, or materially degrade other 
users' utilization of the network; or (5) failing to clearly 
and conspicuously disclose accurate information to the public 
regarding all terms and conditions for use of its broadband 
network and any services provided over that network.
    Section 28(a) should not be interpreted to limit the 
ability of a broadband network provider to protect copyrighted 
works or prevent copyright infringement.
    Paragraph (b) of this section would require that if a 
broadband network provider prioritizes or offers enhanced 
quality of service to data of a particular type, it must 
prioritize or offer the same enhanced quality of service to all 
comparable data without imposing a surcharge or other 
consideration for such prioritization or enhanced quality of 
service.
    Paragraph (c) of this section would preserve certain 
authorities of network operators. The section provides that a 
network operator may take reasonable and non-discriminatory 
actions intended to manage the functioning of its network to 
protect the security of its network; to give priority to 
emergency communications; and to prevent any activity that is 
unlawful under any federal, state, or local law or comply with 
any court-ordered law enforcement directive.
    Paragraph (d) defines the following terms for the Act: 
affiliate, broadband network provider, broadband network 
service, and user.
    ``Affiliate'' means a person that directly or indirectly 
controls or is controlled by another person or a person that 
has a contract with a content or service provider concerning 
access to, or distribution of, such content or such service.
    ``Broadband network provider'' means a person or entity 
engaged in commerce that owns, controls, operates, or resells 
and controls, any facility used to provide broadband network 
service to the public, by whatever technology and whether 
provided separately or as part of a bundled package of services 
for a few in exchange for an explicit benefit, or for free.
    ``Broad network service'' means the provision of two-way 
transmission capacity that transmits information at an average 
rate of at least 200 kilobits per second in at least one 
direction. Such term does not include any transmission capacity 
used exclusively for the transmission of information used for 
financial transactions.
    ``User'' means any person who takes and uses broadband 
network service, whether provided for a fee, in exchange for an 
explicit benefit, or for free.
    Section 3(3) of the bill further amends the Clayton Act to 
provide an administrative remedy for the non-discrimination 
provisions contained in the new Section 28. Specifically, 
Section 3(3) would add Section 28 to the existing provisions of 
the Clayton Act that may be enforced by the Federal Trade 
Commission or other designated administrative agencies pursuant 
to Section 11 of the Clayton Act. Section 11, which is codified 
at 15 U.S.C. Sec. 21, provides for administrative hearings to 
enforce designated substantive provisions of the Clayton Act. 
If a violation is found, the relevant administrative agency 
shall issue a cease and desist order requiring the violator to 
cease the violation. The administrative remedy provided for in 
Section 11 is in addition to, and does not preclude, the 
possibility of government or private lawsuits brought in 
Federal court to enforce Section 28.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

CLAYTON ACT

           *       *       *       *       *       *       *


  Sec. 11. (a) That authority to enforce compliance with 
sections 2, 3, 7, [and 8] 8, and 28 of this Act by the persons 
respectively subject thereto is hereby vested in the Surface 
Transportation Board where applicable to common carriers 
subject to jurisdiction under subtitle IV of title 49, United 
States Code; in the Federal Communications Commission where 
applicable to common carriers engaged in wire or radio 
communication or radio transmission of energy; in the Secretary 
of Transportation where applicable to air carriers and foreign 
air carriers subject to the Federal Aviation Act of 1958; in 
the Federal Reserve Board where applicable to banks, banking 
associations, and trust companies; and in the Federal Trade 
Commission where applicable to all other character of commerce 
to be exercised as follows:
  (b) Whenever the Commission, Board, or Secretary vested with 
jurisdiction thereof shall have reason to believe that any 
person is violating or has violated any of the provisions of 
sections 2, 3, 7, [and 8] 8, and 28 of this Act, it shall issue 
and serve upon such person and the Attorney General a complaint 
stating its charges in that respect, and containing a notice of 
a hearing upon a day and at a place therein fixed at least 
thirty days after the service of said complaint. The person so 
complained of shall have the right to appear at the place and 
time so fixed and show cause why an order should not be entered 
by the Commission, Board, or Secretary requiring such person to 
cease and desist from the violation of the law so charged in 
said complaint. The Attorney General shall have the right to 
intervene and appear in said proceeding and any person may make 
application, and upon good cause shown may be allowed by the 
Commission, Board, or Secretary, to intervene and appear in 
said proceeding by counsel or in person. The testimony in any 
such proceeding shall be reduced to writing and filed in the 
office of the Commission, Board, or Secretary. If upon such 
hearing the Commission, Board, or Secretary, as the case may 
be, shall be of the opinion that any of the provisions of said 
sections have been or are being violated, it shall make a 
report in writing, in which it shall state its findings as to 
the facts, and shall issue and cause to be served on such 
person an order requiring such person to cease and desist from 
such violations, and divest itself of the stock, or other share 
capital, or assets, held or rid itself of the directors chosen 
contrary to the provisions of sections 7 and 8 of this Act, if 
any there be, in the manner and within the time fixed by said 
order. Until the expiration of the time allowed for filing a 
petition for review, if no such petition has been duly filed 
within such time, or, if a petition for review has been filed 
within such time then until the record in the proceeding has 
been filed in a court of appeals of the United States, as 
hereinafter provided, the Commission, Board, or Secretary may 
at any time, upon such notice and in such manner as it shall 
deem proper, modify or set aside, in whole or in part, any 
report or any order made or issued by it under this section. 
After the expiration of the time allowed for filing a petition 
for review, if no such petition has been duly filed within such 
time, the Commission, Board, or Secretary may at any time, 
after notice and opportunity for hearing, reopen and alter, 
modify, or set aside, in whole or in part, any report or order 
made or issued by it under this section, whenever in the 
opinion of the Commission, Board, or Secretary conditions of 
fact or of law have so changed as to require such action or if 
the public interest shall so require: Provided, however, That 
the said person may, within sixty days after service upon him 
or it of said report or order entered after such a reopening, 
obtain a review thereof in the appropriate court of appeals of 
the United States, in the manner provided in subsection (c) of 
this section.

           *       *       *       *       *       *       *


             DISCRIMINATION BY BROADBAND NETWORK PROVIDERS

  Sec. 28. (a) It shall be unlawful for any broadband network 
provider--
          (1) to fail to provide its broadband network services 
        on reasonable and nondiscriminatory terms and 
        conditions such that any person can offer or provide 
        content, applications, or services to or over the 
        network in a manner that is at least equal to the 
        manner in which the provider or its affiliates offer 
        content, applications, and services, free of any 
        surcharge on the basis of the content, application, or 
        service;
          (2) to refuse to interconnect its facilities with the 
        facilities of another provider of broadband network 
        services on reasonable and nondiscriminatory terms or 
        conditions;
          (3)(A) to block, to impair, to discriminate against, 
        or to interfere with the ability of any person to use a 
        broadband network service to access, to use, to send, 
        to receive, or to offer lawful content, applications or 
        services over the Internet; or
          (B) to impose an additional charge to avoid any 
        conduct that is prohibited by this subsection;
          (4) to prohibit a user from attaching or using a 
        device on the provider's network that does not 
        physically damage or materially degrade other users' 
        utilization of the network; or
          (5) to fail to clearly and conspicuously disclose to 
        users, in plain language, accurate information 
        concerning any terms, conditions, or limitations on the 
        broadband network service.
  (b) If a broadband network provider prioritizes or offers 
enhanced quality of service to data of a particular type, it 
must prioritize or offer enhanced quality of service to all 
data of that type (regardless of the origin or ownership of 
such data) without imposing a surcharge or other consideration 
for such prioritization or enhanced quality of service.
  (c) Nothing in this section shall be construed to prevent a 
broadband network provider from taking reasonable and 
nondiscriminatory measures--
          (1) to manage the functioning of its network, on a 
        systemwide basis, provided that any such management 
        function does not result in discrimination between 
        content, applications, or services offered by the 
        provider and unaffiliated provider;
          (2) to give priority to emergency communications;
          (3) to prevent a violation of a Federal or State law, 
        or to comply with an order of a court to enforce such 
        law;
          (4) to offer consumer protection services (such as 
        parental controls), provided that a user may refuse or 
        disable such services;
          (5) to offer special promotional pricing or other 
        marketing initiatives; or
          (6) to prioritize or offer enhanced quality of 
        service to all data of a particular type (regardless of 
        the origin or ownership of such data) without imposing 
        a surcharge or other consideration for such 
        prioritization or quality of service.
  (d) For purposes of this section--
          (1) the term ``affiliate'' means--
                  (A) a person that directly or indirectly 
                owns, controls, is owned or controlled by, or 
                is under the common ownership or control with 
                another person; or
                  (B) a person that has a contract or other 
                arrangement with a content or service provider 
                concerning access to, or distribution of, such 
                content or such service;
          (2) the term ``broadband network provider'' means a 
        person engaged in commerce that owns, controls, 
        operates, or resells any facility used to provide 
        broadband network service to the public, by whatever 
        technology and without regard to whether provided for a 
        fee, in exchange for an explicit benefit, or for free;
          (3) the term ``broadband network service'' means a 2-
        way transmission service that connects to the Internet 
        and transmits information at an average rate of at 
        least 200 kilobits per second in at least one 
        direction, irrespective of whether such transmission is 
        provided separately or as a component of another 
        service; and
          (4) the term ``user'' means a person who takes and 
        uses broadband network service, whether provided for a 
        fee, in exchange for an explicit benefit, or for free.
  Sec. [28] 29. If any clause, sentence, paragraph, or part of 
this Act shall, for any reason, be adjudged by any court of 
competent jurisdiction to be invalid, such judgment shall not 
affect, impair, or invalidate the remainder thereof, but shall 
be confined in its operation to the clause, sentence, 
paragraph, or part thereof directly involved in the controversy 
in which such judgment shall have been rendered.

                           Markup Transcript



                            BUSINESS MEETING

                         THURSDAY, MAY 25, 2006

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    [Intervening business.]
    Chairman Sensenbrenner. Okay. Pursuant to notice, I now 
call up the bill, H.R. 5417, the ``Internet Freedom and 
Nondiscrimination Act of 2006'' for purposes of markup and move 
its favorable recommendation to the House. Without objection, 
the bill will be considered as read and open for amendment at 
any point, and the Chair recognizes himself for 5 minutes to 
explain the bill.
    [The bill, H.R. 5417, follows:]
      
      
      
       
    
    
      
      
      
       
    
    
      
      
      
       
    
    
      
      
      
       
    
    
      
      
      
       
    
    
    Chairman Sensenbrenner. The Internet has revolutionized the 
way Americans access and transmit a broad range of goods, 
ideas, services and information. The central pro-competitive 
feature of the Internet is the nearly unrestricted ability of 
anyone to connect to it to access and post information, 
download content and consume goods and services without 
discrimination.
    According to FCC data released last month, 98.2 percent of 
Americans access high-speed broadband lines by connecting to 
either cable modem or digital subscriber lines. As a result, 
most Americans are subject to a broadband duopoly, while 
others, particularly in rural areas, are subject to a broadband 
monopoly. These conditions create an environment ripe for 
anticompetitive and discriminatory misconduct.
    Since the 1950's and throughout my chairmanship, the House 
Committee and the Judiciary has played a critical role in 
fostering competition in the telecommunications industry. While 
the technological dynamics of the telecom marketplace have 
changed over time, the threat of dominant firms abusing their 
market power to restrain competition and consumer choice has 
not. The lack of competition in the broadband marketplace 
prevents a clear incentive for providers to leverage dominant 
market power over the broadband bottleneck to preselect, favor 
or prioritize Internet content over their networks. When this 
market power is utilized to violate the nondiscriminatory 
features that drive Internet innovation and consumer choice, 
then antitrust remedy is clearly needed. This bill preserves 
the remedy.
    Specifically, H.R. 5417 prohibits anticompetitive conduct 
in which the network provider fails to provide service and 
interconnection on nondiscriminatory terms, blocks or impairs 
the lawful content, prohibits users from attaching devices to 
its network, or fails to inform consumers about the terms of 
the broadband service. These protections do not restrict 
broadband network providers from taking steps necessary to 
manage networks in a nondiscriminatory manner, or to give 
priority to emergency or law enforcement communications.
    In addition, I will offer a bipartisan manager's amendment 
with Ranking Member Conyers to further clarify that nothing in 
this legislation restricts broadband networks from offering 
controls to protect against the transmission of objectionable 
content or manage their networks in a nondiscriminatory manner.
    This legislation is timely for a number of reasons. In the 
Brand X decision last summer, the Supreme Court upheld FCC 
efforts to repeal nondiscriminatory safeguards against 
broadband misconduct. Recently, the Committee of Energy and 
Commerce reported legislation that vests the FCC with exclusive 
authority to define and adjudicate discriminatory broadband 
packages, while expressly prohibiting the FCC from issuing any 
rules and regulations to establish meaningful sanctions for 
this misconduct. These provisions displace the application of 
the antitrust laws in this field and transgresses the authority 
of this Committee. H.R. 5417 restores these protections.
    Opponents of this legislation have sought to portray 
efforts to provide a meaningful remedy for anticompetitive 
misconduct by broadband providers as regulatory in nature. 
However, the antitrust laws have served as a competitive 
backstop against competitive abuse by market dominant forces 
for over a century. Opponents of this bill have also argued 
that meaningful restrictions on the ability of broadband 
providers to abuse their market power to discriminate against 
online conduct is a solution in search of a problem. If this is 
the case, then this legislation merely represents a ``trust but 
verify'' approach, and that worked 15 years ago to make the 
world a better place.
    Finally, opponents of this legislation have attempted to 
transform this debate into a partisan issue. Contrary to the 
specious arguments advanced by broadband network providers, 
efforts to perfect online businesses and consumers against 
predatory and discriminatory practices that produced a broad 
and diverse coalition in support of this legislation. The 
coalition includes the Christian Coalition, the National Retail 
Federation, AARP, Financial Services Roundtable, Intel 
Microsoft Content Providers, the Gun Owners of America, the 
Parents TV Council, and the National Religious Broadcasters. 
And I ask unanimous consent to include their statements of 
support on Internet freedom in the record at this point.
    [The information referred to follows:] 
    
    
    Chairman Sensenbrenner. I urge my colleagues to support 
this legislation, and now recognize the gentleman from 
Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman. I rise as the 
cosponsor of this legislation, and I'm very proud of the fact 
that it is bipartisan in nature, and I commend the Chairman on 
the record for making sure that this jurisdiction over this 
issue remains in the Committee on the Judiciary.
    Now, last year, ladies and gentlemen, in August, the FCC 
voted to change the way it enforces the rules dealing with the 
Internet, basically eliminating net neutrality. What we are 
faced with now is an end to net neutrality as we have 
appreciated it up till now. We're at the final stages, and this 
is why we've introduced this legislation.
    The FCC decision to eliminate, basically eliminate net 
neutrality has a 1-year phase-in period, and so it's still in 
effect for the next few months, but after August of this year, 
there will be no rule or regulation to stop the phone and cable 
companies, a duopoly, 98 percent, from doing what they've said 
they want to do, charge content providers for the right to be 
on their Internet pipes and making special deals with some 
companies to ensure their sites and services work faster and 
easier to find--be found by Internet users. That's why it's so 
critical now that this Committee on Judiciary acts now to 
protect freedom on the Internet.
    And by the way, this comes right to your office door, 
because many of us enjoy a great deal of interaction and 
discussion with citizens, and without the open pipes that allow 
this to happen, if we, without passing this forward today, 
allow this to be changed as it goes out, expires in August, 
guess what? You could, I could, we could, be put in the slow 
lane for our talk, our chats, and the information that we use 
ourselves. And so it's very important that we understand what's 
going to happen if we get rid of net neutrality, which we've 
enjoyed and worked with so far.
    The service providers, bless their hearts--I like a lot of 
them--would be free to block online content or services for any 
reason. They could also charge websites, assuring that any site 
that would or that couldn't or wouldn't pay fees, would not be 
easy to find. It could spell the end of the innovation as small 
businesses have been control--and would now be controlled by 
the big telephone and cable companies. If network providers are 
allowed to control the flow of information, the open and 
freewheeling nature of the Internet that we respect and like so 
much would be lost. We'll lose that town hall environment on 
the Internet, where we talk to one another, exchange views and 
find information from news, opinions, blogs, and engage in the 
democratic give and take that has made the Internet so 
absolutely popular.
    And so we already have instances of Internet providers 
blocking access to the Internet applications that allow you to 
access your network or share files. We've got several cases 
that I won't bother to cite here.
    Net neutrality has the widest support. It's a matter now of 
this Committee determining to continue the same principle that 
has operated so well. Without it, we are going to slide back 
and goodness knows when we will be able to get it repaired.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Conyers. Please support this bipartisan measure, and I 
return----
    Chairman Sensenbrenner. Without objection, all Members 
opening statements will appear in the record at this point.
    Are there amendments? And the Chair recognizes himself to 
offer a manager's amendment on behalf of himself and Mr. 
Conyers, and the clerk will report the amendment.
    The Clerk. Amendment to H.R. 5417, offered by Mr. 
Sensenbrenner. Page 3, strike lines 21 through 25, and insert 
the following.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. The Chair recognizes himself for 5 minutes.
    [The amendment follows:]
      
       
    
    
    Chairman Sensenbrenner. As I noted in my opening statement, 
I am offering this amendment along with Ranking Member Conyers 
to further clarify that nothing in the legislation restricts 
broadband networks from offering controls to protect against 
the transmission of objectionable content or to manage their 
networks in a nondiscriminatory manner. I urge Members to 
support this clarifying amendment, and yield back the balance 
of my time.
    Gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Before running the clock, let me say that we're supposed to 
have votes at noon. We have one other bill besides this one 
that we have to act upon. If we do not get finished, we'll be 
back after lunch.
    The gentleman is recognized for 5 minutes.
    Mr. Nadler. Thank you. I won't take the whole 5 minutes.
    Mr. Chairman, in the 19th century, the great super highway 
of the future was the railroad. Congress recognized that if the 
railroads, which were granted rights-of-way by the Government, 
could engage in price discrimination or in discrimination 
against captive shippers, the Nation's economy and its future 
would be strangled.
    Today the Internet is the super highway of the future. We 
have a choice, to allow a small number of companies to control 
that future, or to ensure that the super highway is open to all 
in a fair and nondiscriminatory basis. The cable and telephone 
companies have a right to a reasonable return on their 
investment, another principle established more than 100 years 
ago. They are not entitled to squeeze competitors or to decide 
who gets to be a part of the electronic future. This bill 
embodies that principle. In addition to which I want to make 
one other comment.
    The campaign finance system in this country, everybody 
agrees is a major problem. What we do about it, a lot of 
disagreement about. Many observers have suggested that the 
Internet may very well solve that problem, that years from now 
people will not do expensive TV ads, but that most 
communications will be over the Internet and cost essentially 
nothing or very little, and this will restore democracy to our 
country in a way that we don't have it now, and will eliminate 
the necessity to raise large sums of money for campaigns. Maybe 
they're right, maybe they're wrong, but we shouldn't interfere 
with that potential. That is just one potential of the 
Internet. It may liberate our country's democratic process 
again.
    Mr. Chairman, I commend you, and I commend the Ranking 
Member for their work on this bill. I believe it strikes the 
appropriate balance between the Nation's interest and 
reasonable and nondiscriminatory access, and the rights of the 
Nation's broadband companies. I urge its adoption. I yield back 
the balance of my time.
    Mr. Smith. Mr. Chairman?
    Chairman Sensenbrenner. Gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. Okay. The gentleman is recognized.
    Mr. Smith. First I'd like to thank the Chairman for his 
strong leadership and his determination to protect the 
prerogatives and jurisdictions of this Committee. No one has 
been stronger in advocating for this Committee, and all of us 
on both sides of the aisle owe him a tremendous debt of 
gratitude.
    The Judiciary Committee has always played a vital role in 
ensuring fair competition in the telecommunications industry. 
We must continue to do so in the constantly evolving 
environment of the Internet, and we will.
    Almost all Members would agree that we need to preserve 
antitrust scrutiny of the industry. The question is, how do we 
best do that? Do we leave it to the exclusive jurisdiction of 
the Federal Communications Commission? I think the Commission's 
record with the 1996 Telecommunications Act shows that that is 
not the best way to go. Or as this bill does, should we try to 
set out the rules of competition of a rapidly evolving market 
before we even know where that market is going? Frankly, I do 
not believe we have the ability to do that. Rather, I think it 
is better to leave these decisions to the courts to work out on 
a case-by-case basis under the antitrust laws.
    Every Member of this Committee cares about our 
jurisdiction, but some of us also have concerns about the 
substance of the bill. However, if the Commerce Committee bill 
comes to the floor, there is no guarantee that this bill will 
be made in order, nor is there any guarantee that it will pass 
on the floor. It is possible that another kind of amendment 
might be in order, and could pass and get this Committee a seat 
on the Conference Committee. So I don't think that preserving 
our Committee's jurisdiction is necessarily tied to voting for 
this bill today.
    It is a well-intentioned bill that would certainly prohibit 
some anticompetitive conduct. The problem is that it would also 
prohibit a lot of conduct that is pro-competitive. Suppose, for 
example, that an innovative company wants to provide a new 
video service that requires greater bandwidth than most 
existing products? Suppose that a broadband provider has the 
capacity to provide that extra bandwidth to one company, but 
not to six other companies? Under this bill's prohibition on 
antidiscrimination and the broadband provider's terms or 
conditions of service, it would not be able to offer the extra 
bandwidth to the one innovative company because it would then 
be required to provide it to all. This is a regulator's dream, 
but an entrepreneur's nightmare.
    Preemptively legislating new regulatory burdens can also 
have many unintended consequences. I am particularly concerned 
about the effects on intellectual property protection. For 
example, the bill says that a broadband provider cannot block 
access to lawful content. How does that apply when users 
subscribe to a peer-to-peer file-sharing network that is 
primarily used for infringing purposes, but may also include 
some lawful content? It is also unclear how broadband providers 
would comply with some of the provisions. For example, the bill 
provides that a broadband provider must clearly and 
conspicuously disclose to users in plain language accurate 
information concerning the terms and conditions of its service.
    This is so broad and vague that I am unsure how anyone 
could know what it means as a practical matter. But if the 
broadband providers violate that requirement, they are subject 
to all the remedies of the antitrust laws, including treble 
damages.
    The point is that it is very difficult to write rules for 
how the Internet should grow. Frankly, so far, it's done a 
pretty good job of growing on its own. Maybe I am wrong. Maybe 
the legislation would not cause any of these problems, but the 
uncertain and unpredictable effect of the bill is what makes it 
worrisome. Even a coalition of first responders has expressed 
their concern that the bill could potentially affect the 
development of new technologies to address interoperability.
    Instead of writing prescriptive rules to solve speculative 
problems, it would be better to focus our efforts on preserving 
the application of current antitrust laws to safeguard against 
anticompetitive practices on the Internet. This approach would 
preserve the jurisdiction of this Committee and ensure that we 
don't put a straitjacket on this important sector of our 
economy.
    While I agree with the good intentions of this legislation, 
I believe that it reaches too far and could stifle future 
innovations instead of protecting them. Although I have great 
appreciation for the Chairman, his strong feelings on this 
issue, and his devotion to this Committee and its interests, I, 
frankly, cannot support this bill even with the manager's 
amendment.
    Thank you, Mr. Chairman.
    Mr. Berman. Would the gentleman yield? I ask unanimous 
consent that the gentleman have an additional minute?
    Chairman Sensenbrenner. Without objection.
    Mr. Berman. Would the gentleman yield?
    Mr. Smith. I'll be happy to yield.
    Mr. Berman. The one issue I've asked you to just address 
further, if you feel that having only the FCC do the regulation 
has been shown not to be appropriate, and if we don't pass this 
bill, in other words, on what basis do you get the Rules 
Committee to say something that has an antitrust angle that 
allows there to be a Justice Department review of questions of 
concentration of power and restraint of trade, will be made a 
Member's amendment on a subject which otherwise is not germane, 
will have the kind of standing that some product coming out of 
this Committee would have in terms of even a approach that 
addresses some of the concerns that you have and perhaps I 
share?
    Mr. Smith. Let me reclaim my time and try to respond to the 
gentleman's question. First of all, let me reiterate my point 
that there is no guarantee that this bill will be made an order 
on the floor, there is no guarantee that it would perhaps pass 
on the floor. I so think we have options by offering other 
amendments. It can be written in a way that would be germane, 
and of course, that's up to the leadership and the Rules 
Committee whether or not they accept an amendment. And I am 
simply saying that that is a possibility, and if that 
possibility does occur, that does preserve the jurisdiction of 
the Committee because I happen to also feel it is important for 
us to have a seat on that conference Committee.
    So I think that it is possible, just there's a lot of 
variables involved.
    Mr. Issa. Would the gentleman yield?
    Mr. Smith. And I'll be happy to yield to the gentleman from 
California.
    Mr. Issa. Thank you. I don't want to take any time on my 
own, because I know this is important that we move forward. I 
just want to associate myself with your comments, and look 
forward to working on the amendment for the floor should this 
not prevail today.
    Mr. Smith. I thank the gentleman and yield back the balance 
of my time.
    Chairman Sensenbrenner. The gentleman's time has expired. 
The gentleman from California, Mr. Schiff.
    Mr. Schiff. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. Mr. Chairman, I would like to pose a question, 
and I don't know if you or any of your colleagues, the sponsors 
of the bill, might weigh in on it. I think many of us have been 
wrestling with this over the last couple of weeks, and I think 
many of us, you know, feel the same way about it, that we like 
the principle of net neutrality, and think this is still a 
growing, vibrant e-industry that we don't want to take steps 
that will chill that growth and development. The question I 
think posed for many of us is whether using the antitrust laws 
is the most effective way to guarantee that kind of openness 
and robustness.
    And for me, what it comes down to--and I'm still wrestling 
with this--and maybe the Chairman, or anyone else would like to 
jump in--and that is, not all broadband providers are 
necessarily in the same situation with the same business model, 
the same market conditions. It's one thing to log onto your 
computer at home and want to be able to travel to any website 
equally. It's another potentially if you're Verizon and you've 
developed a wireless technology that allows people to download 
content to their cell phone, and you've invested a lot of 
capital to make that possible for your phones and then you have 
to provide this now to everyone else, and allow them to 
piggyback on the market investment you've made in that.
    So I think these are tough questions that we'll have to 
decide in terms of what is really open access and what is 
freeloading. And my question is, what gives us confidence to 
believe that the antitrust vehicle and the FTC will do a better 
job than the FCC or some other regime? Is this the best 
approach?
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Schiff. Yes, Mr. Chairman.
    Chairman Sensenbrenner. I think the question posed in this 
bill is a very plain one, and that is, is do we want to have 
antitrust and anticompetitive decisions being made by a judge, 
subject to the appeal procedure, or by 7 politically appointed 
members of the FCC? What this bill says is that the judge makes 
the decision, just like it's done for the last 100 plus years 
since the passage of the Sherman and Clayton Acts.
    Mr. Schiff. Mr. Chairman, if I can reclaim my time. And, 
again, I'm really searching for an answer here. These aren't 
rhetorical questions. But is this a question that is subject to 
judicial determination, or is this really more of a policy 
question about what circumstances do we want to require 
absolute equality, and what circumstances would absolute 
equality chill the development of those new----
    Ms. Lofgren. Will the gentleman yield?
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Schiff. Yes, Mr. Chairman.
    Chairman Sensenbrenner. The Energy and Commerce Committee 
bill this exclusive authority to determine these questions in 
the FCC. And what this bill does is it restores the legal 
construct that we've had since the passage of the landmark 
antitrust laws over 100 years ago in the Federal Judiciary, and 
the policy question is who makes the determination of what is 
anticompetitive?
    I cast my vote in having the judges do it because I think 
they've done it in a fairly responsible manner for over 100 
years. The Energy and Commerce Committee wants to change that 
and to make these determinations done by a regulatory body and 
not by a judicial body.
    Mr. Schiff. Mr. Chairman, I would be happy to yield now to 
the gentlewoman from California.
    Ms. Lofgren. I understand that Members are sorting through. 
It's a very complicated issue, and that we are all trying to do 
the very best that we can with this complicated issue.
    In the example that the gentleman offered where, let's say, 
for example, Provider A develops an advanced cell phone that 
allows for enormous text messaging. The provider, under the 
bill introduced by Mr. Sensenbrenner and Conyers, could charge 
an accelerated price for that advanced product and the consumer 
would pay that price. Under the bill, what they couldn't say is 
that we are going to allow you for Price A to go only to our 
websites or to our customers, but if you're going to go outside 
this network, we're going to charge you an extra price. And 
that's because the Internet has worked because newcomers and 
challengers to incumbents have been able to actually have free 
access to all of their potential customers, and it is the 
customer who decides who they want to contact, not the 
provider, who decides who the customers can contact.
    And so I think that the ability to actually charge for 
services is completely provided for in this. It's only the 
discrimination that monopoly providers of the actual pipes to 
access the Internet that is controlled by this, and absent 
this, the ability of consumers to decide how they want to 
access the Internet is, I think, very much at risk.
    And I thank the gentleman for yielding to me.
    Mr. Cannon. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. For me, this markup is 
like a riddle wrapped in a conundrum, and I just wanted to make 
a couple of things clear. I intend to vote with the Chairman on 
this issue, but I'd like to talk about net neutrality for a 
moment. Real net neutrality, whatever else it is, is going to 
be a function of consumer choice. Consumer Choice is going to 
be a function of a return on investment, and the problem we 
have today is that we don't have clarity of law, and that makes 
it very, very difficult.
    We also have this incredibly complicated competitive 
environment where the cable companies are now offering 
telephone service, and they are cutting a bunch of businesses 
out from under the incumbent telephone companies, and what is 
happening in the Commerce bill is an attempt to sort of even 
the ground so that telephone companies can also offer content 
over their lines. If that doesn't happen, we're going to see 
some pretty terrific dislocations in our whole system.
    So whatever we do here after today, may I suggest that we 
need to do it with clarity, and we need to do it quickly. We 
need to be out of the way of the transformation that is taking 
place around us, and we need to do it in a way that does not 
constrain, but in fact, encourages new competitors to come into 
the system so that consumers can say, ``I don't need to worry 
about the constraints on Provider A because Provider B doesn't 
do those constraints and the price is lower, and I get more 
service.'' And so may I just encourage this Committee, whatever 
we do on this bill, that we need to move quickly and decisively 
and with clarity so that the playing field works in the future.
    And with that, Mr. Chairman, I yield back.
    Mr. Delahunt. Mr. Chairman?
    Chairman Sensenbrenner. Gentleman from Massachusetts, Mr. 
Delahunt.
    Mr. Delahunt. Mr. Chairman, to listen to some of the 
interested parties, net neutrality is a cut and dry case, but I 
have to tell you, this is a complicated issue, one that--much 
more than what the one pages and the talking points would 
suggest. The issues are complex. They're arcane, and require a 
comprehensive understanding of the infrastructure of the 
Internet, as well as current market conditions and the full 
array of potential possibilities.
    And this, in my opinion, really demands a exhaustive and 
thorough review. I've heard opponents of net neutrality argue 
that innovation would be stifled if we don't act because 
network operators will move away from an open Internet and give 
preferential treatment to some content, and I've heard the 
opponents argue that innovation would be stifled if we do act 
because regulation will hamper network providers' ability to 
ensure delivery of high bandwidth services such as video. On 
top of that there are concerns about the impact on deployment 
and investment in broadband, an area where the United States 
falls further behind our peers every year. And I believe that 
we have not, because of time constraints, had the kind of 
hearings in this Committee that are warranted because of the 
significance and importance and complexity of this issue.
    I understand the issue that the Chairman and Ranking 
Member's bill is meant to resolve, would have a profound 
influence on the future of the Internet in the United States. 
It will also, inevitably have an enormous impact on our 
economy.
    To be very candid, I acknowledge, for one, I have 
insufficient information at this point in time to take that 
vote right now. At the same time I recognize that as a Member 
of this Committee that we have, as others have indicated, a 
legitimate role in this process, and often timing is not left 
up to us. There should be no question that this issue falls 
within the jurisdiction of this Committee, and as others have 
mentioned, Mr. Chairman, I acknowledge your commitment to 
defend that jurisdiction. We've disagreed on many issues, and 
we've worked together, and I would suggest achieved significant 
results on other issues. But no one doubts your commitment to 
protecting the jurisdiction of this Committee, and I would 
state publicly that this is a service for both majority and 
minority Members on this dais.
    So with that in mind, and because of my respect for you and 
Mr. Conyers, I intend to vote present on this particular 
proposal. With that, I yield back.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Delahunt. Mr. Chairman, I yield to the gentlelady.
    Ms. Jackson Lee. I thank the distinguished gentleman, and I 
thank him for his thoughtfulness.
    I want to just make the point that we're all friends in 
this room. I think we can find, if you will, a pathway of 
recognition of our friendship. I think it's important to note 
that we are talking about a very unique product and a very 
limited product. We know that the broadband pipes is limited, 
and new applications and services are consuming more and more 
of it. And we also realize that this is a moment in time to be 
able to assert jurisdiction to work with our friends.
    I might commend my colleagues to the Texas model, where we 
talked about protecting consumers and consumer cost. In order 
to get there, I think it's important for us to make a statement 
about the competitive issue, and I believe that Mr. Smith, 
Lamar Smith, had a very valuable thought, and a very valuable 
potential amendment, and I also think that as we make our way 
to the floor, we'll be able to assert a better formula for 
working together----
    Chairman Sensenbrenner. Time of the gentleman has expired. 
The question is----
    Ms. Jackson Lee. Let me just say as I close----
    Chairman Sensenbrenner.--on the amendment offered by----
    Ms. Jackson Lee.--that I think this is a valuable amendment 
and a valuable----
    Chairman Sensenbrenner.--by the gentleman from Michigan, 
Mr. Conyers----
    Ms. Jackson Lee.--statement on jurisdiction, and I yield 
back.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Michigan and myself. Those in 
favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment is agreed to. Are there further amendments? If there 
are no further amendments----
    Mr. Weiner. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Weiner. To strike the requisite number of words.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Weiner. Mr. Chairman, I disagree with you and Mr. 
Conyers and the other sponsors of this legislation on many key 
points, but agree with you on one. You know, I agree that we in 
this Committee and we in this House have to foster innovation. 
I think that it was the innovation of the content providers 
that dragged the dinosaurs of the telcos and the cable 
companies into providing better access, and that will continue 
to happen. I think that, frankly, if it weren't for our need to 
download music for our iPods, we probably would still have a 33 
whatever it is modem I our computer.
    And I think that now after years of kicking and screaming, 
it seems that the cable companies and the telcos get it. It 
seems that they understand that content and the ability for 
people to get content is going to be how the winners and losers 
in the future of this are going to be defined. I don't believe 
that they have shown any instinct, despite some intemperate 
remarks from their leadership, they haven't shown any instinct, 
at least up to now, to close off the pipe, which is the fear of 
so many who advocate.
    I think that the winners, the i-tubes, the sling boxes of 
the future, they are going to be the winners, telcos are going 
to be the winners, cable companies are going to be the winners 
when we allow as much access to content.
    What concerns me is about those that we don't know, the 
smaller companies we're unaware of that might not have access. 
That's a reasonable complaint. But I have to say the very same 
people who are advocating for net neutrality were at the 
vanguard of advocating that we in Congress take a libertarian 
view of these issues. Stay out of these fights, we were 
constantly told by these content providers. We said that these 
fights will go on. Everyone will claim that big guy is going to 
squash me, and then 5 years later that big guy was getting 
squashed by someone who seemed like a little guy. Stay out of 
it we were argued.
    And it turned out to be wisdom, I believe. I believe we 
shouldn't weigh in in these gambling issues by forcing credit 
card companies to get involved. I believe we shouldn't weigh 
in, as abhorrent as some things are on the Internet. Stay out, 
it's a bad idea to legislate in this area. Now those very same 
libertarians are saying, ``Wait a minute. We need a new law. We 
call it net neutrality. Let's put it on top of everything.'' I 
disagree with the Chairman and the Ranking Member in that 
regard. But I agree with them in a very important way. The way 
the Energy and Commerce bill is written, it is clearly to deny 
this Committee, and frankly, most citizens, a right to remedy.
    On page 43 of the Energy and Commerce bill the adjudicatory 
authority says, the Commission, the FCC, shall have exclusive 
authority to adjudicate any complaint alleging a violation of 
the broadband policy statement, those four freedoms that are 
articulated by the FCC and are enshrined in this legislation, 
and the principles incorporated therein.
    A little further down on that same page it has limitations. 
Nothing in this section shall include authorization for the 
Commission to adopt or implement rules regarding enforcement. 
It's almost as if they say you can go to the FCC and have this 
adjudicated, but you can't do anything else. You can't have 
rules. You can't have any public input, and the way I read 
this: ``shall have exclusive authority'' means that there's no 
meaningful--if a court has to decide whether or not you can 
have an antitrust challenge brought, I read this to be, to 
guide any court to say no, that Congress believes there's not 
going to be any antitrust jurisdiction here. Why would you do 
that? If you say we want this essentially to allow the 
marketplace to work, why would you then put in language that 
makes it so difficult for the people to have any effort to make 
sure that it does work?
    Mr. Conyers. Would the gentleman yield very briefly?
    Mr. Weiner. Certainly.
    Mr. Conyers. Thank you so much.
    Mr. Weiner. Certainly.
    Mr. Conyers. The only reason this measure is before us 
today is that it is expiring. In August of this year there 
won't be any practice. We're continuing what we already have, 
my friend----
    Mr. Weiner. Yes, I----
    Mr. Conyers. And that the antitrust provision is the only 
way that each small company will have a right to get in it. FCC 
doesn't work. FTC does their own thing----
    Mr. Weiner. And reclaiming my time, and I understand that, 
and I disagree fundamentally with the idea that we want to put 
another regulatory scheme on top, and I believe that we have to 
let kind of the currents of this fight go its various ways. One 
of the ways is to go to the courts and say, you know what, the 
duopoly power that is controlled right now by the cable 
companies or the telcos, we shouldn't be legislating it, but 
there are going to be disputes about that, and they may wind up 
in the courts and we may have judges and juries deciding these 
things. And this is why at the end of the day I believe that 
the Sensenbrenner-Conyers bill is a wise idea, and for 
something else.
    We should want to, in this Committee, be fighting every 
single day to make sure intellectual property discussions don't 
just go on in the Energy and Commerce Committee. This is more 
than about energy and more than about commerce. It's also about 
a fundamental desire that we all have to make sure that speech 
is fostered, to make sure that technology is fostered. So I 
take the view that while I think we shouldn't legislate this 
area, we can slam the door shut on these other areas where 
people can----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Weiner. This is the big ending, Mr. Chairman. In that 
fundamental way, I----
    Chairman Sensenbrenner. The gentleman's time has expired. 
The Chair will once again reiterate that either we get this 
bill done before the votes, which are coming imminently, or we 
will be back here no later than one o'clock. Now, the question 
is----
    Mr. Issa. Move to strike the last word, Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California seek recognition?
    Mr. Issa. Mr. Chairman, I move to strike the last word. I 
will be incredibly brief.
    Chairman Sensenbrenner. Okay.
    Mr. Issa. Although I do have an amendment at the desk, I've 
been convinced by staff that we can continue working on the 
question of the bit rate that's in the underlying 
Sensenbrenner-Conyers bill, because 200 kilobits is, in my 
opinion, old technology and far too slow, and it does entrap, 
as the debate spoke about, it does entrap the existing 
broadband cellular networks unnecessarily, and my amendment 
would have raised that to the one MIP or thousand kilobit 
speed, and I look forward to working with the Chairman, and 
with that, I yield back.
    Chairman Sensenbrenner. The Chair would ask Members to 
consider whether they want to continue talking. If the Chair 
recognizes another Member, we will be back at one o'clock.
    The Committee is recessed until one o'clock.
    [Recess.]
    AFTERNOON SESSION
    Chairman Sensenbrenner. The Committee will be in order. 
When the Committee recessed, the pending question was on the 
motion to report the bill, H.R. 5417, favorably as amended. The 
bill is open for amendment at any point.
    The gentleman from Maryland, for what purpose do you seek 
recognition?
    Mr. Van Hollen. I move to strike the last word, Mr. 
Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Van Hollen. Thank you, Mr. Chairman. I too, like others 
before the break, want to commend you and Mr. Conyers for your 
leadership on this issue. I also want to associate myself with 
others who made the point that this is a difficult and 
complicated issue, and I do think it's important that as a 
Congress we move carefully in this area. I believe, as I think 
all of us on this Committee and in Congress do, that we want to 
maintain the Internet as a free and open space in cyber space 
for the exchange of ideas, products and services. And the 
question is, what's the best way to do that? And I think there 
is a fair debate as to the best approach to do that.
    Like others--and Mr. Weiner discussed this in his 
comments--I do disagree with the approach taken by the Energy 
and Commerce Committee. And he, I think very ably, made the 
point that the bill that came out of the Energy and Commerce 
Committee both vested the FCC with exclusive jurisdiction, at 
the same time gutted in many ways the meaningfulness of that 
jurisdiction.
    I would just like to relate a letter from the Federal Trade 
Commission, the FTC, addressed to Mr. Conyers, April 14th, 
because it relates to this issue. And question No. 8 there was, 
is there anything the FTC would ask of Congress in order to 
clarify jurisdictional divisions and/or facilitate the FTC's 
work with regard to protecting consumers in the broadband 
Internet access marketplace.
    And in their response to that question, they say, ``As 
Congress considers legislation on broadband Internet access, 
the Commission believes that any such legislation should 
clearly preserve the FTC's existing authority over activities 
within its jurisdiction such as broadband Internet access. We 
note that some recent legislative proposals would assign to the 
FCC specific competition and consumer protection authority 
regarding such activities, and could be misread to oust the FTC 
from its established jurisdiction.'' In other words, its 
jurisdiction over anticompetitive behavior.
    While I have to say that I don't think that the bill before 
this Committee is the very best way to deal with that issue, I 
think there are better ways. For example, I think the best 
approach would be to go into the bill that came out of the 
Energy and Commerce Committee, get rid of the exclusivity 
provision, make some other changes. I do think it's the best 
vehicle before us to send a very strong signal that we don't 
like what is in the Energy and Commerce Committee bill, and I 
don't know----
    Mr. Conyers. Would the gentleman yield?
    Mr. Van Hollen. I'd be happy to yield.
    Mr. Conyers. I just want him to know that's precisely what 
we tried to do. This is our fallback position. What we want to 
do is give individuals and companies a right to sue 
themselves--sue in their own rights, and that the only way we 
can do it is through antitrust. As we all know, FCC is like a 
moss pit, there's nothing that can happen there. And I thank 
the gentleman for his evaluation and mentioning our 
communication with FTC because it's so important.
    Mr. Van Hollen. I thank you as well. And again, I do have 
some concerns that the language of the bill before us with 
respect to antidiscriminatory practices could have some 
unintended consequences. Mr. Schiff, in his earlier comments, 
mentioned a particular hypothetical. And I am concerned that if 
it was to be enacting the law in its current form, it could 
curb creativity, it could hamper investment, and it could do in 
some things that we would be inconsistent with the very intent 
of what we're trying to do. And so I am at this time going to 
be supporting this legislation, with the understanding that its 
primary purpose from my perspective is to put the rest of the 
Congress, put the Energy and Commerce Committee on notice we 
have concerns with what they did and we want that addressed in 
some fashion, even if this isn't the final solution.
    Mr. Conyers. Would the gentleman yield briefly again?
    Mr. Van Hollen. I'd be happy to.
    Mr. Conyers. I just want him to know that those concerns 
are the same as mine, and we want all these companies that are 
out there--I'm sure they want the same kind of things for 
themselves that you want for them too. So I think we've got a 
broad mandate from a large part of the telecom community to 
make those kinds of improvements if we can. And I thank the 
gentleman.
    Mr. Van Hollen. I thank you.
    Chairman Sensenbrenner. The question is on reporting the 
bill favorably as amended----
    Mr. Schiff. Mr. Chairman?
    Chairman Sensenbrenner. Gentleman from California, Mr. 
Schiff.
    Mr. Schiff. Thank you, Mr. Chairman. I move to strike the 
last word. I just want to associate myself with the comments by 
Mr. Van Hollen. I think the bill is a blunt instrument, and yet 
I think it does send a message that it's important to retain 
jurisdiction for the Justice Department and for antitrust 
issues. But I would hope in the interim between this bill 
coming up or the other bill coming on the floor, there will be 
an opportunity to visit in greater detail some of the issues to 
improve upon the work product, and on that basis, I yield back.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Schiff. Yes.
    Ms. Jackson Lee. I thank the gentleman. Listening to both 
of you, I just want to reiterate that this compromise or this 
approach in a bipartisan way has worked, and it has worked in 
the State of Texas, where there was an ability to focus on I 
think your concern, one jurisdiction, but more importantly, 
consumers having choice, having protection. And I hope that 
everyone understands that's all this legislation is attempting 
to do, is to provide that kind of protection.
    I am hoping as well, as I said earlier toward the end of 
the gavel, that we can work our will toward the floor and make 
the kind of, I think, holistic opportunity for the broadband 
providers, but also for what I think is important, consumers, 
who I know that they are respectful of. So my support is based 
upon that contention, and I thank the gentleman for yielding. I 
yield back.
    Mr. Schiff. I yield back, Mr. Chairman.
    Chairman Sensenbrenner. The question is on reporting the 
bill favorably as amended. A reporting quorum is present. Those 
in favor will say aye.
    Opposed, no.
    Chairman Sensenbrenner. The ayes appear to have it.
    Mr. Schiff. Mr. Chairman, I'd like a recorded vote, please.
    Chairman Sensenbrenner. A recorded vote is ordered. Those 
in favor of reporting the bill, H.R. 5417, favorably as 
amended, will as your names are called answer aye, those 
opposed no, and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Inglis?
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye. Mr. Boucher?
    Mr. Boucher. Aye.
    The Clerk. Mr. Boucher, aye. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Mr. Weiner?
    Mr. Weiner. Pass.
    The Clerk. Mr. Weiner, pass. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mrs. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Mrs. Wasserman Schultz, aye. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes? Gentleman from California, Mr. Lungren.
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? Gentlewoman from California, Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Chairman Sensenbrenner. Gentleman from Massachusetts, Mr. 
Delahunt?
    Mr. Delahunt. Present.
    The Clerk. Mr. Delahunt, present.
    Chairman Sensenbrenner. Gentleman from New York, Mr. 
Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. Further Members who wish--gentleman 
from California, Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Chairman Sensenbrenner. Gentleman from Wisconsin, Mr. 
Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Further Members who wish to cast or change their vote? 
Gentleman from California, Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    [Pause.]
    The Clerk. Mr. Chairman, there are 20 ayes, 13 nays and one 
present.
    Chairman Sensenbrenner. And the motion to report the bill 
favorably is agreed to. Without objection, the bill will be 
reported favorably to the House in the form of a single 
amendment in the nature of a substitute, incorporating the 
amendments adopted here today. Without objection, the staff is 
directed to make technical and conforming changes, and all 
Members will be given 2 days as provided by the House rules in 
which to submit additional dissenting supplemental or minority 
views.
    [Intervening business.]
    [Whereupon, at 1:53 p.m., the Committee was adjourned.]

                                  
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