S 2863 IS

To provide for deregulation of consumer broadband services.

August 1, 2002

Mr. MCCAIN introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

To provide for deregulation of consumer broadband services.

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

SECTION 1. SHORT TITLE; AMENDMENT OF COMMUNICATIONS ACT OF 1934; TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the `Consumer Broadband Deregulation Act'.

(b) Amendment of Communications Act of 1934- Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Communications Act of 1934 (47 U.S.C. 151 et seq.).

(c) TABLE OF CONTENTS- The table of contents for this Act is as follows:

Sec. 1. Short title; amendment of Communications Act of 1934; table of contents.

Sec. 2. Findings.

Sec. 3. Deregulation of consumer broadband services.

Sec. 4. Unbundled access and collocation requirements.

Sec. 5. National clearinghouse for high-speed Internet access.

Sec. 6. Enforcement.

Sec. 7. Spectrum reform study.

Sec. 8. Study on ways to promote broadband through e-government.

SEC. 2. FINDINGS AND PURPOSE.

(a) FINDINGS- The Congress finds the following:

(1) All consumer broadband service markets should be open to competition.

(2) Consumer broadband service can be provided over numerous different platforms.

(3) All providers of consumer broadband services should be able to provide such services and be subject to harmonized regulation when offering such services.

(4) Consumer broadband services can enhance the quality of life for Americans and promote economic development, job creation, and international competitiveness.

(5) Advancements in the nation's Internet infrastructure will enhance the public welfare by helping to speed the delivery of services such as telemedicine, distance learning, remote medical services, and distribution of health information.

(6) Government regulations that affect high-speed Internet access should promote investment and innovation in all technological platforms.

(b) PURPOSE- It is the purpose of this Act to allow market forces to introduce investment and innovation in consumer broadband services for the benefit of all Americans.

SEC. 3. DEREGULATION OF CONSUMER BROADBAND SERVICES.

(a) IN GENERAL- The Act is amended--

(1) by redesignating title VII as title VIII;

(2) by redesignating sections 701 through 714 as sections 801 through 814, respectively;

(3) by striking `section 714' in section 309(j)(8)(C)(iii) and inserting `section 814';

(4) by striking `section 705' in section 712(b) and inserting `section 805'; and

(5) by inserting after title VI the following:

`TITLE VII--CONSUMER BROADBAND SERVICES

`SEC. 701. RETAIL CONSUMER BROADBAND SERVICE.

`(a) FREEDOM FROM REGULATION- Except as provided in subsection (c), neither the Commission, nor any State, shall have authority to regulate the rates, charges, terms, or conditions for the retail offering of consumer broadband service.

`(b) OTHER SERVICES AND FACILITIES- Nothing in this section precludes the Commission, or a State or local government, from regulating the provision of any service other than consumer broadband service, even if that service is provided over the same facilities as are used to provide consumer broadband service.

`(c) Service Quality-

`(1) COMMISSION DETERMINATION REQUIRED- The Commission shall initiate a study within 2 years after the date of enactment of the Consumer Broadband Deregulation Act to determine whether State regulation of consumer broadband service quality is appropriate or necessary for the protection of consumers.

`(2) REGULATIONS; STATE ENFORCEMENT- If the Commission determines that State regulation of consumer broadband service quality is appropriate or necessary for the protection of consumers, the Commission shall promulgate regulations establishing uniform national guidelines regulating consumer broadband service quality that may be enforced by States. Any regulations promulgated under this

paragraph may not take effect before the date that is 2 years after the date of enactment of the Consumer Broadband Deregulation Act.

`(3) Preemption of other state service quality regulation-

`(A) IN GENERAL- Unless the Commission promulgates regulations under paragraph (2), no State may regulate the quality of consumer broadband services provided to its citizens or residents.

`(B) LIMITATION- If the commission promulgates regulations under paragraph (2), no State may regulate the quality of consumer broadband services provided to its citizens or residents except as provided in those regulations.

`(4) NO INFERENCE- Nothing in this section shall affect a State's ability to enforce consumer protection laws and regulations unrelated to the technical provision of consumer broadband service.

`SEC. 702. WHOLESALE CONSUMER BROADBAND SERVICE.

`(a) IN GENERAL- Except as provided in subsection (b), neither the Commission nor any State or political subdivision thereof shall have authority to require a consumer broadband service provider to afford an Internet service provider access to its facilities or services for the purpose of offering a consumer broadband service.

`(b) EXCEPTION- To the extent that any entity is required by the Commission to afford an Internet service provider access to its facilities or services for the purpose of providing consumer broadband service on the date of enactment of the Consumer Broadband Deregulation Act, the Commission may require that entity to continue to afford such access.

`(c) REPORT- The Commission shall report to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce within 2 years after the date of enactment of the Consumer Broadband Deregulation Act on the state of the wholesale market for consumer broadband services and its effect on retail competition for these services.

`(d) SUNSET PROVISION- Subsection (b) shall cease to be effective 5 years after the date of enactment of such Act, unless the Commission finds that the continued exercise of its authority under that subsection is necessary to preserve and protect competition in the provision of consumer broadband services.

`SEC. 703. LIMIT ON STATE AND LOCAL AUTHORITY; PUBLIC RIGHTS-OF-WAY CHARGES.

`(a) REMOVAL OF BARRIERS TO ENTRY- No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any consumer broadband service.

`(b) COST-BASED COMPENSATION FOR RIGHTS-OF-WAY- A State or local government may not require compensation from consumer broadband service providers for access to, or use of, public rights-of-way that exceeds the direct and actual costs reasonably allocable to the administration of access to, or use of, public rights-of-way.

`(c) PUBLIC DISCLOSURE- A State or local government shall disclose to the public, on a timely basis and in an easily understood format, any compensation required from consumer broadband service providers for access to, of use of, public rights-of-way.

`SEC. 704. ACCESS BY PERSONS WITH DISABILITIES.

`(a) MANUFACTURERS- A manufacturer of equipment used for consumer broadband services shall ensure that equipment is designed, developed, and fabricated to be accessible to and usable by persons with disabilities, unless the manufacturer demonstrates that taking such steps would result in an undue burden.

`(b) CONSUMER BROADBAND SERVICE PROVIDERS- A provider of consumer broadband services shall ensure that its services are accessible to and usable by persons with disabilities, unless the provider demonstrates that taking such steps would result in an undue burden.

`(c) COMPATIBILITY- Whenever the requirements of subsections (a) and (b) constitute an undue burden, a manufacturer or provider shall ensure that the equipment or service is compatible with existing peripheral devices or specialized customer premises equipment commonly used by persons with disabilities to achieve access, unless the manufacturer or provider demonstrates that taking such steps would result in an undue burden.

`(d) REGULATIONS- Within 18 months after the date of enactment of the Consumer Broadband Deregulation Act, the Commission shall prescribe such regulations as are necessary to implement this section. The regulations shall ensure consistency across multiple service platforms with respect to access by persons with disabilities. The regulations also shall provide that neither broadband services, broadband access services, nor the equipment used for such services may impair or impede the accessibility of information content when accessibility has been incorporated in that content for transmission through broadband services, access services, or equipment.

`(e) DEFINITIONS- In this section--

`(1) DISABILITY- The term `disability' has the meaning given to it by section 3(2)(A) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102(2)(A)).

`(2) UNDUE BURDEN- The term `undue burden' means significant difficulty or expense. In determining whether the requirements of this paragraph would result in an undue burden, the factors to be considered include--

`(A) the nature and cost of the steps required for the manufacturer or provider;

`(B) the impact on the operation of the manufacturer or provider;

`(C) the financial resources of the manufacturer or provider; and

`(D) the type of operations of the manufacturer or provider.

`SEC. 705. RELATIONSHIP TO TITLES II, III, AND VI.

`If the application of any provision of title II, III, or VI of this Act is inconsistent with any provision of this title, then to the extent the application of both provisions would conflict with or frustrate the application of the provision of this title--

`(1) the provision of this title shall apply; and

`(2) the inconsistent provision of title II, III, or VI shall not apply.'.

(b) CONSUMER BROADBAND SERVICES DEFINED- Section 3 (47 U.S.C. 153) is amended by inserting after paragraph (12) the following:

`(12A) Consumer broadband services-

`(A) IN GENERAL- The term `consumer broadband services' means interstate residential high-speed Internet access services.

`(B) HIGH-SPEED- The Commission shall establish by rule the criterion, in terms of megabits per second, to be used for the purpose of determining whether residential Internet services are high-speed Internet services. In establishing that criterion, the Commission shall consider whether the speed is sufficient to support existing applications and to encourage the development of new applications. The Commission shall revise the criterion as necessary and shall review any criterion established by it no less frequently than each 18 months.

`(C) INTERNET ACCESS SERVICE- The term `Internet access service' means a service that combines computer processing, information storage, protocol conversion, and routing with telecommunications to enable users to access Internet content and services.'.

SEC. 4. UNBUNDLED ACCESS AND COLLOCATION REQUIREMENTS.

(a) UNBUNDLED ACCESS- Section 251(c)(3) (47 U.S.C. 251(c)(3)) is amended to read as follows:

`(3) Unbundled access-

`(A) IN GENERAL- The duty to provide, to any requesting telecommunications carrier for the provision of a telecommunications service, nondiscriminatory access to network elements on an unbundled basis at any technically feasible point on rates, terms, and conditions that are just, reasonable, and nondiscriminatory in accordance with the terms and conditions of the agreement and the requirements of this section and section 252. An incumbent local exchange carrier shall provide such unbundled network elements in a manner that allows requesting carriers to combine such elements in order to provide such telecommunications service.

`(B) EXCEPTION- The duty to provide access under subparagraph (A) does not require an incumbent local exchange carrier to provide access to a fiber local loop or fiber feeder subloop to a requesting carrier to enable the requesting carrier to provide a telecommunications service that is an input to a consumer broadband service unless the incumbent local exchange carrier has removed or rendered useless a previously existing cooper loop necessary to provide such services.'.

(b) COLLOCATION- Section 251(c)(6) (47 U.S.C. 251(c)(6)) is amended to read as follows:

`(6) Collocation-

`(A) IN GENERAL- The duty to provide, on rates, terms, and conditions that are just, reasonable, and nondiscriminatory, for physical collocation of equipment necessary for interconnection or access to unbundled network elements at the premises of the local exchange carrier, except that the carrier may provide for virtual collocation if the local exchange carrier demonstrates to the State commission that physical collocation is not practical for technical reasons or because of space limitations.

`(B) EXCEPTION- The duty to provide for collocation under subparagraph (A) does not

require an incumbent local exchange carrier to provide for collocation in a remote terminal.'.

SEC. 5. NATIONAL CLEARINGHOUSE FOR HIGH-SPEED INTERNET ACCESS.

(a) IN GENERAL- The Secretary of Commerce shall establish a national clearinghouse within the Department of Commerce that allows communities throughout the United States, particularly rural communities, to find data and information relating to the deployment of facilities capable of supporting high-speed Internet services.

(b) EXCHANGE FUNCTION- The Secretary shall solicit and accept data, information, and advice from communities that have succeeded in attracting the deployment of broadband services and infrastructure in order to make that data, information, and advice available to other communities that are seeking to deploy high-speed Internet services.

SEC. 6. ENFORCEMENT.

(a) CEASE AND DESIST AUTHORITY- Section 501 of the Communications Act of 1934 (47 U.S.C. 501) is amended--

(1) by striking `Any person' and inserting `(a) FINES AND IMPRISONMENT- Any person';

(2) by adding at the end the following new subsection:

`(b) CEASE AND DESIST ORDERS- If, after a hearing, the Commission determines that any common carrier or consumer broadband service provider is engaged in an act, matter, or thing prohibited by this Act, or is failing to perform any act, matter, or thing required by this Act, the Commission may order such common carrier or provider to cease or desist from such action or inaction.'.

(b) FORFEITURE PENALTIES- Section 503(b) of the Communications Act of 1934 (47 U.S.C. 503(b)) is amended--

(1) in paragraph (2)(B)--

(A) by striking `exceed $100,000' and inserting `exceed $1,000,000'; and

(B) by striking `of $1,000,000' and inserting `of $10,000,000';

(2) in paragraph (2)(C), by striking `subparagraph (A) or (B)' and inserting `subparagraph (A), (B), or (C)';

(3) by redesignating subparagraphs (C) and (D) of paragraph (2) as subparagraphs (D) and (E), respectively;

(4) by inserting after subparagraph (B) of paragraph (2) the following new subparagraph:

`(C) If a common carrier or consumer broadband service provider has violated a cease and desist order or has previously been assessed a forfeiture penalty for a violation of a provision of this Act or of any rule, regulation, or order issued by the Commission, and if the Commission or an administrative law judge determines that such common carrier has willfully violated the same provision, rule, regulation, that this repeated violation has caused harm to competition, and that such common carrier or consumer broadband service provider has been assessed a forfeiture penalty under this subsection for such previous violation, the Commission may assess a forfeiture penalty not to exceed $2,000,000 for each violation or each day of continuing violation; except that the amount of such forfeiture penalty shall not exceed $20,000,000.'; and

(5) in paragraph (6)(B), by striking `1 year' and inserting `2 years'.

SEC. 7. WIRELESS BROADBAND STUDY.

(a) IN GENERAL- The Federal Communications Commission shall conduct a study--

(1) on wireless technology to determine the appropriate role of the Federal government in facilitating greater consumer access to consumer broadband services using evolving advanced technology; and

(2) what, if any, action by the Federal government is needed to increase the deployment of new wireless technology to facilitate high-speed Internet access.

(b) FOCUS- In conducting the study, the Commission shall focus on consumer broadband services utilizing wireless technology.

(c) CONSIDERATION OF WIRELESS INDUSTRY VIEWS- In conducting the study, the Commission shall consider the views of, among other interested parties, representatives of the telecommunications industry (as defined in section 714(k)(3) of the Communications Act of 1934 (47 U.S.C. 614(k)(3)) involved in wireless communications.

(d) Report-

(1) IN GENERAL- The Commission shall transmit a report, containing its findings, conclusions, and recommendations from the study to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce within 18 months after the date of enactment of this Act.

(2) REPORT TO BE AVAILABLE TO PUBLIC- The Commission shall make its report available to the public.

SEC. 8. STUDY ON WAYS TO PROMOTE BROADBAND THROUGH E-GOVERNMENT.

The Secretary of Commerce, in consultation with the Director of the Office of Management and Budget, shall transmit a report to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce within 6 months after the date of enactment of this Act on how the Federal government can promote the use of broadband services through e-government, including--

(1) online delivery of government services;

(2) video-streaming of government press events and open public events, such as announcements and administrative proceedings;

(3) e-health and online education initiatives;

(4) access to government documents; and

(5) the ramifications of enhanced government online services on user privacy and the security of the Federal government's electronic infrastructure.

END