Broadband Investment and Consumer Choice Act - Subjects any telecommunications conduct, activity, service, or service provider only to the requirements of this Act, and not to any other federal, state, or local common carrier law or regulation concerning telecommunications or information services.
Prohibits any state or local government from regulating direct-to-home satellite services. Directs the Federal Communications Commission (FCC) to forbear from regulating mobile services unless determined necessary because of lack of competition or for the protection of public health and safety.
Requires each telecommunications carrier deemed to be an incumbent local exchange carrier (LEC) and each eligible telecommunications carrier (a carrier eligible for federal universal service support) to offer basic telephone service (BTS) to business and residential customers throughout the LEC's service territory. Directs the FCC to establish federal quality standards for BTS service relating to reasonable uptime, installation and repair intervals, and voice quality. Provides penalties for standards violations.
Prohibits (with exceptions): (1) a consumer from being denied access to any content provided over facilities used to provide broadband communications service (the transmission of communications at a capacity greater than 64 kilobits per second); and (2) a broadband service provider from blocking subscriber access to such content. Prohibits a broadband service provider from preventing a customer from using voice over Internet Protocol (VOIP) applications offered by a competitor.
Requires the FCC, with respect to service providers, to develop rules and regulations regarding telecommunications services, including billing and access for persons with disabilities.
Requires: (1) facilities-based providers to establish commercial arrangements regarding their ability to interconnect with other facilities-based providers; and (2) the FCC to govern interconnectivity between such providers and narrowband communications service providers.
Requires an incumbent LEC to provide unbundled access to copper local loops at commercially reasonable rates, terms, and conditions.
Allows an incumbent local exchange provider serving less than two percent of the access lines of the country to elect to continue to be subject to current federal and state statutory and regulatory requirements.
Prohibits a video service provider (VSP) from being required to: (1) obtain a state or local video franchise; (2) build out its video distribution system in any particular manner; or (3) provide access to its distribution facilities and equipment to any other VSP. Authorizes state and local government charges against VSPs for the cost of managing public rights-of-way used by VSPs.
Requires the FCC to prescribe regulations to promote: (1) competition and diversity in the multichannel video programming market; and (2) the continuing development of communications technologies.
Sets forth requirements for state- or locally-owned networks seeking to provide communications service and requires such governments to have an open bidding process allowing non-governmental entities to compete for the provision of such service.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1504 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 1504
To establish a market driven telecommunications marketplace, to
eliminate government managed competition of existing communication
service, and to provide parity between functionally equivalent
services.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 27, 2005
Mr. Ensign (for himself and Mr. McCain) introduced the following bill;
which was read twice and referred to the Committee on Commerce,
Science, and Transportation
_______________________________________________________________________
A BILL
To establish a market driven telecommunications marketplace, to
eliminate government managed competition of existing communication
service, and to provide parity between functionally equivalent
services.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Broadband
Investment and Consumer Choice Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. General principle.
Sec. 4. Definitions.
Sec. 5. Consumer communications service.
Sec. 6. Federal quality standards.
Sec. 7. Consumer access to content and applications.
Sec. 8. Regulatory authority of the commission.
Sec. 9. Network interconnection and access requirements.
Sec. 10. Unbundled access to copper loops, physical collocation, and
resale.
Sec. 11. Number portability.
Sec. 12. Special provisions for 2-percent carriers.
Sec. 13. Video services.
Sec. 14. Copyright limitations on exclusive rights video service
providers.
Sec. 15. Municipally owned networks.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Since passage of the Telecommunications Act of 1996,
there have been dramatic changes in the industry, technology,
and marketplace requiring Congress to revisit the
communications policy of the Nation.
(2) Inter-modal competition is bringing consumers more
choice in voice, data, and video service options than ever
before.
(3) A new policy framework is required to allow
functionally equivalent services to compete fairly.
(4) Silos of regulation based on historical regulatory
classifications only invite arbitrage and result in government
influenced market distortions.
(5) Such market distortions coupled with lack of regulatory
certainty is chilling investment and stalling deployment of
broadband networks.
(6) The United States is falling behind the world in
broadband penetration and it must encourage investment to
regain a leadership position in the world.
(7) Communications networks are global in nature and the
United States must eliminate barriers for domestic
communications providers to compete in the global marketplace.
(8) As the United States transitions to a market driven
communications service sector, consumers should be protected
with a safety net of access to affordable Basic Telephone
Service.
(9) A new communications framework should foster consumer
value and choice by unleashing markets, in lieu of government-
managed competition.
(10) The 1's and 0's of the digital age are not constrained
by State lines or national boundaries, therefore, a patch work
quilt of State and local regulations will only stifle growth
and impose undue costs and burdens on consumers.
(11) In the event that market failure leads State or local
governments to contemplate construction of their own
communications services, the option to enter that market should
first be provided to commercial providers under similar terms
to ensure that such governments are not competing unnecessarily
with private industry.
(12) Robust competition coupled with rapid number
portability will empower consumers to choose the best services
at the best prices.
SEC. 3. GENERAL PRINCIPLE.
(1) Applicability of the communications act of 1934.--
Except as provided in this Act, any conduct, activity, service,
or service provider shall on or after the date of enactment of
this Act, be subject only to the requirements of this Act, if
such conduct, activity, service, or service provider was,
before the date of enactment of this Act, subject to--
(A) titles I, II, and VI or section 332 of the
Communications Act of 1934 (47 U.S.C. 151 et seq.);
(B) any equivalent State common carrier law or
regulation with respect to telecommunications,
telecommunications services, or information services;
or
(C) any State or local law, regulation, or order
with respect to cable services or video services.
(2) Limitation on government authority.--Notwithstanding
any other provision of Federal, State, or local law, and except
as provided in this Act, no Federal, State, or local government
shall have authority--
(A) to regulate the rates, terms, price, or quality
of any communications service;
(B) to require any facilities-based communications
service provider to provide third parties with access
to its facilities; or
(C) to regulate the rates, terms, and conditions,
if any, on which a facilities-based communications
service provider chooses to afford third parties with
access to its facilities.
(3) No effect on titles iv, v, vii of the communications
act of 1934.--Nothing in this Act shall be construed to affect
title IV, V, or VII of the Communications Act of 1934 (47
U.S.C. 151 et seq.) and the provisions of such titles shall be
applicable to any conduct, activity, service, or service
provider subject to this Act.
(4) Affect on certain provisions of title ii of the
communications act of 1934.--
(A) In general.--Nothing in this Act shall be
construed to affect the authority of the Commission
under sections 206, 207, 208, 209, 224, 225, 226, 227,
229, 230, 253, and 255 of the Communications Act of
1934.
(B) Authority still valid.--Except as provided
otherwise in this Act, any conduct, activity, service,
or service provider subject to this Act shall be
subject to the authority and the requirements of the
provisions of the Communications Act of 1934 described
in subparagraph (A).
(5) No affect on state laws of general applicability.--
Nothing in this Act is intended to affect State laws of general
applicability to all businesses, except to the extent that such
laws are inconsistent with this Act.
(6) Direct-to-home satellite services.--No State or local
government shall have the authority to regulate through
franchise agreements or otherwise direct-to-home satellite
services, including any activity, conduct, or matter
concerning--
(A) rates;
(B) services;
(C) billing;
(D) equipment; and
(E) sales.
(7) Regulatory treatment of mobile services.--
(A) Forbearance.--The Commission shall forbear from
applying any regulation, provision, or requirement
imposed by this Act or the Communications Act of 1934
to a mobile service or persons or classes of persons
engaged in the provision of such service, to the extent
such persons are engaged in the provision of such
service, in all of the geographic markets served by
such service, unless the Commission determines that
enforcement of such regulation or provision is
necessary--
(i) because of the lack of competition
among providers of such service; or
(ii) for the protection of public health
and safety.
(B) Petition for forbearance.--
(i) In general.--Any provider or class of
providers of a mobile service may submit a
petition to the Commission requesting that the
Commission exercise the authority granted under
subparagraph (A) with respect to that provider
or class of providers.
(ii) 1-year review period.--Not later than
1 year after the Commission receives a petition
submitted under clause (i), such petition shall
be deemed granted if the Commission does not
deny the petition on either of the grounds
described in subparagraph (A), unless such 1-
year period is extended by the Commission.
(iii) Extension of review period.--The
Commission may extend the initial 1-year period
under clause (ii) by an additional 90 days if
the Commission finds that an extension is
necessary to complete the determination
required by that clause.
(iv) Authority of commission.--The
Commission--
(I) may grant or deny a petition in
whole or in part; and
(II) shall explain its decision in
writing.
(8) Regulatory treatment of seamless mobility.--
(A) In general.--In implementing the provisions of
this Act or any other proceeding, the Commission shall
not take any action to impede the development of
seamless mobility.
(B) Definition.--For purposes of this paragraph,
the term ``seamless mobility'' means the ability of a
consumer and connecting devices of consumer to move
easily and smoothly between and among internet protocol
enabled technology platforms, facilities, and networks.
(9) Rulemaking.--The Commission shall have authority to
establish rules to implement the provisions of paragraphs (3)
and (4) that are no greater or lesser than the requirements
contained in the titles described in paragraph (3) and the
sections described in paragraph (4).
SEC. 4. DEFINITIONS.
(a) In General.--For purposes of this Act:
(1) Basic telephone service; bts.--The term ``Basic
Telephone Service'' or ``BTS''--
(A) means a single-line flat rate voice
communications service--
(i) within a traditional local calling
area;
(ii) with access to 911;
(iii) with touch tone dialing; and
(iv) with access to long distance; and
(B) does not include any interexchange
communications wireline service.
(2) Broadband communications service.--The term ``broadband
communications service'' means a communications service
enabling the trans- mission of communications at a capacity
greater than 64 kilobits per second.
(3) Commission.--The term ``Commission'' means the Federal
Communications Commission.
(4) Communications service.--The term ``communications
service''--
(A) means any service enabling an end user to
transmit, receive, store, forward, retrieve, modify, or
obtain voice, data, image, or video communications
using any technology, including--
(i) copper;
(ii) coaxial cable;
(iii) optical fiber;
(iv) terrestrial fixed wireless;
(v) terrestrial mobile wireless;
(vi) satellite;
(vii) power lines; or
(viii) successor technologies; and
(B) does not include--
(i) television or radio broadcasting; and
(ii) any service that is not provided to
the public or to a substantial portion of the
public.
(5) Consumer.--The term ``consumer''--
(A) means a consumer of goods or services whether
for a fee, in exchange for an explicit benefit, or
provided for free; and
(B) includes--
(i) an end user of communications service;
(ii) individuals;
(iii) partnerships;
(iv) associations;
(v) joint-stock companies;
(vi) trusts; and
(vii) corporations.
(6) Copper loops.--The term ``copper loops'' means an
entirely copper cable transmission facility used to provide
circuit switched services, between a distribution frame (or its
equivalent) in the central office of an incumbent local
exchange carrier and the loop demarcation point at the premise
of a consumer.
(7) Eligible telecommunications carrier; etc.--The term
``eligible telecommunications carrier'' or ``ETC'' means a
telecommunications carrier that has been determined, under
section 214(e) of the Communications Act of 1934 (47 U.S.C.
214(e)), to be eligible for Federal universal service support.
(8) Facilities-based provider.--The term ``facilities-based
provider'' means a provider of a communications service to the
extent that such provider makes available such communications
service predominantly by means of its own network.
(9) Franchise.--The term ``franchise'' has the meaning
given to such term in section 602(9) of the Communications Act
of 1934 (47 U.S.C. 522(9)).
(10) Incumbent local exchange carrier.--The term
``Incumbent Local Exchange Carrier'' has the meaning given to
such term in section 251(h) of the Communications Act of 1934
(47 U.S.C. 251(h)).
(11) Interconnection.--The term ``interconnection'' means
the physical linking of 2 networks whether directly or
indirectly for the mutual exchange of non video traffic.
(12) Narrowband communications service.--The term
``narrowband communications service'' means a communications
service enabling the transmission of communications at a
capacity of not more than 64 kilobits per second.
(13) Public switched telephone network.--The term ``public
switched telephone network'' means the collection of
interconnected circuit switched telecommunications.
(14) Satellite carrier.--The term ``satellite carrier'' has
the meaning given to such term in section 119(d)(6) of title
17, United States Code.
(15) Transiting service.--The term ``transiting service''
means a service provided by a facilities-based provider which
facilitates the indirect interconnection between 2 other
facilities-based providers on the circuit switched network.
(16) 2-percent carrier.--The term ``2-percent carrier''
means an incumbent local exchange provider which serves in
aggregate less than 2 percent of the access lines of the Nation
on the date of enactment this Act.
(17) Video service.--The term ``video service'' means--
(A) video programming;
(B) interactive on demand services; and
(C) other programming services.
(18) Video service provider.--The term ``video service
provider''--
(A) means a provider of video service that utilizes
a public right-of-way in the provision of such service;
and
(B) does not include--
(i) a satellite carrier;
(ii) any person providing video programming
using radio communication;
(iii) any other provider of video service
that does not use a public right-of-way in the
provision of its service; or
(iv) any person providing video service by
means of a commercial mobile service, unless
such person has substantially replaced a video
service provider described in subparagraph (A)
by occupying a position in the video service
market comparable to that occupied by such
provider.
(b) Common Terminology.--Except as otherwise provided in subsection
(a), terms used in this Act shall have the same meaning given to such
terms under sections 3, 332(d), and 602 of the Communications Act of
1934 (47 U.S.C. 153, 332(d), and 522).
SEC. 5. CONSUMER COMMUNICATIONS SERVICE.
(a) Basic Telephone Service Safety Net.--Each telecommunications
carrier that is deemed to be an incumbent local exchange carrier on the
date of enactment of this Act and any ETC shall offer BTS to business
and residential customers throughout the service territory of such
incumbent local exchange carrier, as such service territory was defined
on the date of enactment of this Act.
(b) Rate Cap.--
(1) In general.--Until January 1, 2010, BTS rates charged
by an incumbent local exchange carrier shall be capped at
current basic local residential or business rates.
(2) Exception.--The cap under paragraph (1) does not
include additional fees and charges that may be imposed to
cover expenses related to--
(A) subscriber line and universal service charges;
and
(B) other similar taxes and fees.
(3) Annual adjustment.--After January 1, 2010, BTS rate
caps may be adjusted annually by the incumbent local exchange
carrier by an amount not to exceed any adjustment in the
Consumer Price Index.
(c) Expansion of BTS.--An incumbent local exchange carrier or an
ETC may expand or modify the services it provides in its BTS offering,
if such expansion or modification results in a BTS offering that is
equal or more favorable to consumers.
(d) BTS Technology.--
(1) In general.--An incumbent local exchange carrier or an
ETC may determine the technology it uses to meet its BTS
obligations under this section, if such technology does not
alter the rates, terms, and conditions for a BTS offering
required under subsection (b).
(2) Equal access not required.--Notwithstanding any other
provision of this Act or any other provision of law, a BTS
offering may not require equal access to long distance, if the
incumbent local exchange carrier or an ETC is offering BTS
through a communications technology that does not support equal
access as of the date of enactment of this Act.
(e) Termination of Bts.--If a consumer purchases any service,
capability, or function in addition to a BTS offering, the resulting
offering shall not--
(1) be deemed to be a BTS offering; and
(2) be subject to the requirements of subsection (a).
(f) Carrier of Last Resort Obligations.--Any carrier of last resort
obligation under the Communications Act of 1934 (47 U.S.C. 151 et seq.)
or any equivalent State law, regulation, or order shall be satisfied,
subject to the exceptions provided in such section, by the ubiquitous
availability of BTS to all consumers in a service territory.
SEC. 6. FEDERAL QUALITY STANDARDS.
(a) Quality Standards.--The Commission, taking into consideration
that different technologies can potentially be used to provide BTS
service and that such technologies may have different performance
characteristics than a public switched telephone network, shall
establish Federal quality standards for BTS service relating to--
(1) reasonable uptime;
(2) installation intervals;
(3) repair intervals; and
(4) suitable voice quality.
(b) Additional Standards.--The Commission shall establish
reasonable maximum intervals for the performance of different classes
of incumbent local exchange carriers.
(c) Enforcement.--
(1) In general.--Notwithstanding any other provision of
this Act, a State commission shall have the authority to
enforce the Federal quality standards established under
subsections (a) and (b).
(2) Limitation.--
(A) In general.--The regulatory power granted to a
State commission under this subsection shall apply only
to the enforcement of the Federal standards under
subsections (a) and (b).
(B) Penalties.--Any penalties assessed by a State
commission for violations of the standards established
under subsections (a) and (b) shall be limited to those
provided for in paragraph (4).
(3) Limitation on class actions.--No class action alleging
a violation of the standards under subsection (a) and (b) shall
be maintained under this subsection by an individual or any
private party in Federal or State court.
(4) Penalties.--
(A) In general.--Notwithstanding any other
provision of this Act, any ETC or incumbent local
exchange carrier that violates the standards
established under subsections (a) and (b) shall be
subject to a civil penalty not to exceed $50 per
household for the first violation.
(B) Subsequent violations.--Subsequent violations
by any ETC or incumbent local exchange carrier of the
standards established under subsections (a) and (b)
shall increase at intervals of $50 per violation per
household up to a maximum of $500.
(C) Annual adjustment.--The amount of penalties
provided under this section shall be adjusted annually
by an amount equal to any adjustment in the Consumer
Price Index.
(D) Penalty to be paid to consumers.--
(i) In general.--All penalties collected
under authority of this section shall be paid
to consumers that are directly affected by the
failure to comply with the standards
established under subsections (a) and (b).
(ii) Exclusive remedy.--The penalties
established under authority of this section
shall be the exclusive remedy for failure to
comply with the standards established under
subsections (a) and (b).
(d) Commission to Act if State Commission Will Not Act.--If a State
commission fails to carry out its enforcement responsibilities under
subsection (c), the Commission shall--
(1) issue an order preempting the jurisdiction of the State
commission; and
(2) assume exclusive enforcement authority.
(e) Lifeline Assistance.--Nothing in this section shall affect the
collection, distribution, or administration of the Lifeline Assistance
Program provided for by the Commission under regulations set forth in
section 69.117 of title 47, Code of Federal Regulations, and other
related sections of such title.
SEC. 7. CONSUMER ACCESS TO CONTENT AND APPLICATIONS.
(a) Access.--
(1) In general.--A consumer may not be denied access to any
content provided over facilities used to provide broadband
communications service and a broadband service provider shall
not willfully and knowingly block access to such content by a
subscriber, unless--
(A) such content is determined to be illegal;
(B) such denial is expressly authorized by Federal
or State law; or
(C) such access is inconsistent with the terms of
the service plan of such consumer including applicable
bandwidth capacity or quality of service constraints.
(2) Customized content.--A broadband communications service
provider may offer to a consumer a customized plan developed
through such service providers network or commercial
arrangements with providers of content, applications, and other
service components to differentiate--
(A) access to content;
(B) the availability of applications; and
(C) the character of service components available.
(3) Non-customized content.--Nothing in subsection (a)
shall adversely affect the performance of non-customized
consumer access to content, services, and applications offered
by the competitors of a broadband service provider.
(b) Enforcement of Access Violations.--
(1) In general.--The Commission may take such enforcement
action as it may prescribe by rule, if the Commission
determines that a broadband communications service provider
intentionally restricted access to any content described in
subsection (a)(1).
(2) Exception.--A broadband communications service provider
may not be in violation of subsection (a), if such service
provider does not interrupt or block access to any content
described in subsection (a)(1) when--
(A) performing network--
(i) optimization or management;
(ii) security; or
(iii) prioritization;
(B) performing other measures to ensure network
security and integrity; or
(C) attempting to prevent unlawful conduct.
(c) Parental Controls.--Nothing in this section shall be construed
to prohibit--
(1) any communications service provider from offering a
service that allows a consumer to block display of programs
with a common rating; and
(2) a provider of mobile services from offering or
providing access only to a family friendly service to a
subscriber.
(d) Connectivity of Devices.--Except as provided in this section, a
broadband service provider shall not prevent any person from utilizing
equipment and devices in connection with lawful content or
applications.
(e) Access to VoIP Applications.--Nothing in subsection (a) shall
permit a broadband service provider to prevent a customer from using
voice over Internet Protocol applications offered by a competitor.
SEC. 8. REGULATORY AUTHORITY OF THE COMMISSION.
(a) Federal Policy.--The Commission shall, with respect to
communication service providers, develop rules and regulations
regarding--
(1) automatic dialing, telephone solicitation, slamming,
cramming, E911, obscene and harassing telephone calls;
(2) billing disputes;
(3) the use, sale, and distribution of consumer proprietary
network information; and
(4) access for persons with disabilities, including--
(A) the hearing impaired; and
(B) the speech impaired.
(b) Commission Rules.--
(1) In general.--In developing the rules required under
subsection (a), the Commission shall take into account the
technical limitations of the technology used by communications
service providers.
(2) Timing.--Not later than 120 days after the date of
enactment of this Act, the Commission shall establish the rules
required under subsection (a), and until such rules become
effective, the requirements of Federal law, including all prior
Commission rules and orders in effect on the date of enactment
of this Act relating to the matters described in subsection (a)
shall--
(A) remain in effect; and
(B) be applicable to the matters described in
subsection (a).
(c) Enforcement.--
(1) State commission authority.--Notwithstanding any other
provisions of this Act, a State commission shall have authority
to enforce the rules established by the Commission pursuant to
this section.
(2) Local point of contact.--Each State commission shall
designate a local point of contact, which residents of that
State may contact to alert the State of any potential
violations of the rules and regulations set forth under
subsection (a).
(3) Limitation on class actions.--No class action alleging
a violation of the rules and regulations set forth under
subsection (a) shall be maintained under this subsection by an
individual or any private party in Federal or State court.
(4) Parens patriae authority.--In any case in which a State
commission has reason to believe that an act or practice
violates the rules and regulations set forth under subsection
(a), the State commission may bring a civil action on behalf of
the residents of that State in a district court of the United
States of appropriate jurisdiction, or any other court of
competent jurisdiction, to--
(A) enjoin the act or practice;
(B) obtain--
(i) damages in the sum of actual damages,
restitution, or other compensation on behalf of
affected residents of the State; and
(ii) punitive damages, if the violation is
willful or intentional; or
(C) obtain such other legal and equitable relief as
the court may consider to be appropriate.
(5) Venue; service of process.--
(A) Venue.--Any action brought under this
subsection may be brought in the district court of the
United States that meets applicable requirements
relating to venue under section 1931 of title 28,
United States Code.
(B) Service or process.--In an action brought under
this subsection, process may be served in any district
in which the defendant--
(i) is an inhabitant; or
(ii) may be found.
(d) Limitation of State Authority.--Notwithstanding the provisions
of this section, States and State commissions shall have no authority
to impose different or additional interconnection or intercarrier
compensation requirements on communication service providers.
(e) Commission to Act if State Commission Will Not Act.--If a State
commission fails to carry out its enforcement responsibilities under
subsection (c), the Commission shall--
(1) issue an order preempting the jurisdiction of the State
commission; and
(2) assume exclusive enforcement authority.
SEC. 9. NETWORK INTERCONNECTION AND ACCESS REQUIREMENTS.
(a) Interconnection Arrangements.--
(1) In general.--Facilities-based providers shall establish
commercial arrangements regarding the ability of such
facilities-based providers to interconnect with other
facilities-based providers.
(2) Scope of arrangements.--The commercial arrangements
described in paragraph (1) shall establish the rates, terms,
and conditions on which facilities-based providers shall
interconnect with other facilities-based providers.
(3) Exemption from regulation.--Except as provided in
subsections (b) and (c), the commercial arrangements described
in paragraph (1) may not be subject to regulation by the
Commission or by the States or State commissions.
(b) Commission Intervention With Narrowband Communication Service
Providers.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act, the Commission shall develop a
regulatory framework governing interconnection between
facilities-based providers and narrowband communication service
providers.
(2) Scope of regulatory framework.--The regulatory
framework described in paragraph (1) shall apply only in
connection with the termination or origination of traffic on
narrowband communication service providers facilities.
(3) Uniform rate structure.--The regulatory framework
described in paragraph (1)--
(A) shall establish a uniform rate structure
governing interconnection between facilities-based
providers and narrowband communication service
providers;
(B) shall apply only in the event narrowband
communication service providers cannot agree on the
rates, terms, and conditions of interconnection between
facilities-based providers and such narrowband
communication service providers; and
(C) may not require the Commission to use any
particular rate-making methodology in establishing the
uniform rate structure required by this paragraph.
(4) No state authority.--No State or State commission may
establish rates, terms, or conditions governing interconnection
between facilities-based providers and narrowband communication
service providers regardless of the jurisdictional nature of
the underlying traffic involved.
(5) Contents of framework.--The regulatory framework
described in paragraph (1)--
(A) shall establish reasonable and equitable points
of interconnection;
(B) shall facilitate narrowband communication
service providers efforts to innovate and introduce new
services and packages of services to consumers;
(C) shall eliminate arbitrage opportunities;
(D) shall eliminate intercarrier disputes over the
rates, terms, and conditions of direct interconnection;
and
(E) may not unduly burden electronic commerce.
(c) Transiting Service.--
(1) In general.--Transiting service providers shall
establish commercial arrangements with respect to transiting
services.
(2) Scope of arrangements.--The commercial arrangements
described in paragraph (1) shall establish the rates, terms,
and conditions for transiting service.
(3) Exemption from regulation.--Except as provided in
paragraphs (4) and (5), the commercial arrangements described
in paragraphs (1) and (2) may not be subject to regulation by
the Commission or by the States or State commissions.
(4) Commission intervention for transiting service.--
(A) Establishment of regulatory framework.--Not
later than 6 months after the date of enactment of this
Act, the Commission shall develop a regulatory
framework governing transiting service.
(B) Applicability of regulatory framework.--The
regulatory framework developed under subparagraph (A)
shall apply only in the event agreement cannot be
reached on the rates, terms, and conditions for
transiting service pursuant to paragraphs (1) and (2).
(5) Scope of regulatory framework.--The regulatory
framework described in paragraph (4) shall establish the rates,
terms, and conditions on which facilities-based providers shall
provide transiting service.
(6) No compensation obligation.--Transiting service
providers shall have no obligation to compensate any party to
an indirect interconnection of narrowband communications
service providers for the delivery of any transited traffic.
(d) Sunset of Regulatory Framework.--The regulatory frameworks
established under subsections (b) and (c) shall terminate on the day
occurring 5 years after the date of enactment of this Act.
(e) Notice of Changes.--A facilities-based provider of
communications service shall provide reasonable public notice of--
(1) changes in the information necessary for the
transmission and routing of communications service using such
facilities-based provider of communications service facilities
or networks; and
(2) any other changes that would affect the
interoperability of such facilities and networks.
(f) Identification of Traffic.--Any party seeking to use a
facilities-based provider of communications service network to route
their traffic through another facilities-based provider of
communications service shall, to the extent technically feasible and in
a manner consistent with applicable industry standards, identify--
(1) such traffic; and
(2) the origin of such traffic.
(g) Equal Access.--Nothing in this Act shall require any
communications service provider, or any other person, that was not
required on the date of enactment of this Act to provide equal access
to common carriers for the provision of telephone toll services to
provide such equal access.
SEC. 10. UNBUNDLED ACCESS TO COPPER LOOPS, PHYSICAL COLLOCATION, AND
RESALE.
(a) Incumbent Local Exchange Carrier Obligations.--
(1) Unbundled access.--
(A) In general.--An incumbent local exchange
carrier shall provide unbundled access to copper local
loops on commercially reasonable rates, terms, and
conditions.
(B) Commission to resolve disputes.--The Commission
shall resolve any disputes regarding unbundled access
to copper loops as described in subparagraph (A).
(C) Exemption.--Except as provided in subparagraph
(A), no facilities-based provider of communications
service shall have any obligation to provide unbundled
access to any of its facilities, equipment, or support
systems, either individually or in combination.
(2) Collocation.--
(A) In general.--An incumbent local exchange
carrier shall provide physical collocation at the
central office of such carrier for access to unbundled
copper loops.
(B) Virtual collocation.--If the physical
collocation described in subparagraph (A) is not
practical for technical reasons or due to space
limitations, virtual collocation for access to
unbundled copper loops shall be required.
(3) Resale.--
(A) In general.--An incumbent local exchange
carrier shall provide resale of any local narrowband
communications service that is subject to regulation
under this Act.
(B) Resale rate.--The resale rate applicable to
subparagraph (A) shall--
(i) be established by the Commission; and
(ii) equal the retail rate for such
services less the costs actually avoided.
(b) Sunset.--The obligations established under subsection (a) shall
terminate on January 1, 2011.
(c) Report.--Not later than January 1, 2009, the Commission shall
submit to Congress a detailed report, with recommendations, on whether
the obligations established under subsection (a) are in the public
interest.
SEC. 11. NUMBER PORTABILITY.
(a) In General.--All communications service providers that use
numbers or the successor system assigned by the North American
Numbering Plan, or any such successor entity, shall provide number
portability to consumers.
(b) 5-Day Rule.--The Commission shall develop rules and regulations
requiring that numbers be ported in no more than 5 business days.
(c) Rulemaking Proceeding.--The Commission may commence a
rulemaking proceeding if the Commission finds that excessive early
cancellation fees charged by communications service providers are
hindering the ability of consumers to change providers.
SEC. 12. SPECIAL PROVISIONS FOR 2-PERCENT CARRIERS.
(a) Opt In/Opt Out.--
(1) In general.--Any 2-percent carrier may elect to
continue to be subject to Federal and State statutory and
regulatory requirements as such requirements existed on the
date of enactment of this Act.
(2) Study area basis.--The election under paragraph (1) may
be made only on a study area basis.
(b) Rural Exemption.--If a communications service provider that is
also a rural telephone company, as that term is defined in section 3 of
the Communications Act of 1934 (47 U.S.C. 153), elects under subsection
(a) to continue to be subject to the regulatory requirements in
existence on the date of enactment of this Act, such communications
service provider shall retain its rural exemption pursuant to section
251(f) of the Communications Act of 1934 (47 U.S.C. 251(f)).
(c) NECA Tariffs Unaffected.--Nothing in this section precludes or
affects any tariff filed by the National Exchange Carrier Association,
and any such tariff may continue to include--
(1) all tariffed services in effect on the date of
enactment of this Act; and
(2) any new service or modifications to existing service
typically covered by such tariffs.
(d) Negotiation Authority of NECA.--For the purpose of conducting
and concluding commercial negotiations regarding interconnection
arrangements, the National Exchange Carrier Association is authorized
to be the negotiating agent for any 2-percent carrier wishing to use
the National Exchange Carrier Association for such purpose.
SEC. 13. VIDEO SERVICES.
(a) Video Service Providers.--A video service provider may not be
required--
(1) to obtain a State or local video franchise;
(2) to build out its video distribution system in any
particular manner; or
(3) to provide leased or common carrier access to its video
distribution facilities and equipment to any other video
service provider.
(b) State and Local Government Authority to Regulate.--
(1) Reasonable fee.--
(A) Compensating local governments.--
(i) In general.--A State or local
government may require a video service provider
to pay a reasonable video service fee on an
annual basis to the units of local government
in which the video service provider provides
video service for the purpose of compensating
such local government for the costs that it
incurs in managing the public rights-of-way
used by such provider.
(ii) Amount of fee.--The video service fee
imposed under clause (i) shall not exceed 5
percent of gross revenues.
(B) Definition.--For purposes of this paragraph,
the term ``gross revenues''--
(i) means all consideration of any kind or
nature received by a video service provider
from its subscribers for the provision of video
service within a municipality, including--
(I) cash;
(II) credits;
(III) property; and
(IV) in-kind contributions
(services or goods); and
(ii) does not include--
(I) revenue not actually received,
even if billed, including bad debt;
(II) revenue received by any
affiliate or any other person in
exchange for supplying goods or
services used by a video service
provider to provide video service;
(III) refunds, rebates, or
discounts provided to--
(aa) subscribers;
(bb) leased access
providers;
(cc) advertisers; or
(dd) the municipality;
(IV) revenue from services not
classified as video service,
including--
(aa) revenue received from
telecommunications services;
(bb) revenue received from
information services;
(cc) revenue received in
connection with advertising;
(dd) revenue received in
connection with home shopping
services; or
(ee) any other revenue
attributed by a video service
provider to non-video service
in accordance with any
applicable rules, regulations,
standards, or orders;
(V) revenue paid by subscribers to
home shopping programmers directly from
the sale of merchandise through any
home shopping channel offered as part
of the video service;
(VI) the sale of video service for
resale in which the purchaser of such
service is required to collect a 5
percent fee from the customer of such
purchaser;
(VII) any tax of general
applicability--
(aa) imposed upon a video
service provider or upon
subscribers by a Federal,
State, city, or any other
governmental entity; and
(bb) required to be
collected by a video service
provider and remitted to the
taxing entity, including--
(AA) sales or use
taxes;
(BB) gross receipts
taxes;
(CC) excise taxes;
(DD) utility users
taxes;
(EE) public service
taxes;
(FF) communication
taxes; and
(GG) the 5 percent
fee described in
subclause (VI);
(VIII) the provision of video
service to public institutions, public
schools, or governmental entities at no
charge;
(IX) any foregone revenue from the
provision of free or reduced-cost video
service by a video service provider to
any person, including--
(aa) the municipality;
(bb) other public
institutions; and
(cc) other institutions;
(X) sales of capital assets or
sales of surplus equipment;
(XI) reimbursement by programmers
of marketing costs incurred by a video
service provider for the introduction
or promotion of programming;
(XII) directory or Internet
advertising revenue, including revenue
from--
(aa) yellow page sales;
(bb) white page sales;
(cc) banner advertisement;
and
(dd) electronic publishing;
and
(XIII) copyright fees paid to the
United States Copyright Office.
(2) Rights-of-way disputes to be resolved by the commission
or federal courts.--Any dispute regarding the application or
amount of fees charged under paragraph (1) shall, upon request
of a local unit of government or affected video service
provider, be resolved--
(A) by the Commission; or
(B) by filing a claim in the district court of the
United States that meets applicable requirements
relating to venue under section 1931 of title 28,
United States Code.
(3) State adjustment of fees and taxes.--
(A) In general.--A video service provider may
petition the Commission for a reduction of the fee paid
by such provider under this subsection, if a State
adjusts the fees and taxes paid by communications
service providers or their customers for the purpose
of--
(i) providing fairness;
(ii) equality of treatment; or
(iii) simplification of the fees and taxes
of such providers relative to each other or to
other commercial and industrial tax payers in
general within such State.
(B) Commission action on petition.--The Commission
shall act on any petition described in subparagraph (A)
not later than 60 days after its receipt.
(C) Grant of petition.--The Commission shall grant
a petition described in subparagraph (A) if and to the
extent it determines that the fees paid by a video
service provider should be reduced in order to achieve
the purposes of fairness, equality of treatment, or
simplification described in subparagraph (A).
(4) Fee appearance on subscriber's bill.--A video service
provider may designate that portion of a subscriber's bill
attributable to a video service fee as a separate item on the
subscriber's bill.
(c) Applicability of Title VI of the Communications Act; Cable Act
Provisions.--
(1) Obligations and duties.--Any video service provider
shall--
(A) not be subject to any provision of title VI of
the Communications Act of 1934 (47 U.S.C. 521 et seq.),
except as otherwise provided in this paragraph;
(B) be subject to the retransmission consent
obligations of section 325(b) of the Communications Act
of 1934 (47 U.S.C. 325(b));
(C) carry and determine the appropriate channel
positioning and grouping of, within each local
franchise area, not more than 4 public, educational, or
governmental use channels as required under section 611
of such Act (47 U.S.C. 531);
(D) carry the signals of local commercial
television stations as required under section 614 of
such Act (47 U.S.C. 534);
(E) carry the signals of local noncommercial
educational television stations as required under
section 615 of such Act (47 U.S.C. 535);
(F) be subject to the regulation of carriage
agreements under section 616 of such Act (47 U.S.C.
536);
(G) be subject to the requirements regarding
obscene or indecent programming under section 624(d)(2)
of such Act (47 U.S.C. 544(d)(2));
(H) be entitled to the benefits and protections
under section 624(f)(1) of such Act (47 U.S.C.
544(f)(1)) regarding the content of video service;
(I) be subject to the emergency information
requirements under section 624(g) of such Act (47
U.S.C. 544(g));
(J) be subject to the consumer electronics
equipment capability requirements under section 624A of
such Act (47 U.S.C. 545);
(K) be entitled to the benefits and protections
under section 628 of such Act (47 U.S.C. 548);
(L) be subject to the requirements under section
629 of such Act (47 U.S.C. 549);
(M) protect the personally identifiable information
of its subscribers in the same manner as is required of
cable operators with respect to subscribers to cable
services under section 631 of such Act (47 U.S.C. 551);
(N) be entitled to the benefits and protections
under section 633 of such Act (47 U.S.C. 553);
(O) be subject to the equal employment provisions
as required under subsections (a) through (h) of
section 634 of such Act (47 U.S.C. 554);
(P) be subject to criminal or civil liability under
section 638 of such Act (47 U.S.C. 558);
(Q) be subject to the penalties prescribed for the
transmission of obscene programming under section 639
of such Act (47 U.S.C. 559); and
(R) be required to comply with the scrambling
requirements under section 640 of such Act (47 U.S.C.
560).
(2) Determinations of local signals.--For purposes of
complying with subparagraphs (C) and (D) of paragraph (1), a
video service provider shall treat as local stations with
respect to a customer located within the jurisdiction of any
franchising authority the same stations that are treated as
local television stations for a cable system located within
such jurisdiction.
(3) Implementation.--
(A) Regulations required.--Not later than 120 days
after the date of enactment of this Act, the Commission
shall prescribe regulations to implement the
requirements of paragraph (1) that are no greater or
lesser than the obligations required by the
specifically referenced provisions of the
Communications Act of 1934 (47 U.S.C. 151 et seq.).
(B) Effective date of regulations.--The regulations
required under subparagraph (A) shall take effect 6
months after the date of enactment of this Act.
(4) Existing franchises.--
(A) In general.--Any provision in any franchise
granted by a franchising authority that is inconsistent
with the provisions of this Act shall be deemed to be
preempted and superseded.
(B) Treatment as a video service provider.--A cable
operator operating under the authority of any franchise
described in subparagraph (A) prior to the date of
enactment of this Act shall be treated as a video
service provider under this Act.
(5) Cable channels for public, educational, and
governmental use.--The governmental entity that was the
franchising authority for a State or a political subdivision of
a State on the date of enactment of this Act, shall for that
State or political subdivision determine which public,
educational, or governmental entities shall be authorized to
designate the channels required under paragraph (1)(C).
(6) Consumer protection and customer service.--
(A) Regulations required.--Not later than 120 days
after the date of enactment of this Act, the Commission
shall establish regulations with respect to customer
service and consumer protection requirements of the
video service provider.
(B) Effective date of regulations.--The regulations
required under subparagraph (A) shall take effect 6
months after the date of enactment of this Act.
(7) State commission authority.--
(A) In general.--Notwithstanding any other
provision of this Act, a State commission shall have
the authority to enforce the requirements of paragraph
(6)(A).
(B) Local point of contact.--Each State commission
shall designate a local point of contact, which
residents of such geographic area may contact to alert
such State commission of any potential violations of
the requirements and obligations established under
paragraph (6)(A).
(C) Limitation on class actions.--No class action
alleging a violation of the obligations set forth in
the regulations established by the Commission under
paragraph (6)(A) shall be maintained under this
subsection by an individual or any private party in
Federal or State court.
(D) Parens patriae authority.--In any case in which
a State commission has reason to believe that an act or
practice violates the obligations set forth in the
regulations established by the Commission under
paragraph (6)(A), the State commission may bring a
civil action on behalf of the residents within its
jurisdiction in a district court of the United States
of appropriate jurisdiction, or any other court of
competent jurisdiction, to--
(i) enjoin the act or practice;
(ii) obtain--
(I) damages in the sum of actual
damages, restitution, or other
compensation on behalf of affected
residents of the State; and
(II) punitive damages, if the
violation is willful or intentional; or
(iii) obtain such other legal and equitable
relief as the court may consider to be
appropriate.
(E) Venue; service of process.--
(i) Venue.--Any action brought under this
paragraph may be brought in the district court
of the United States that meets applicable
requirements relating to venue under section
1931 of title 28, United States Code.
(ii) Service or process.--In an action
brought under this paragraph, process may be
served in any district in which the defendant--
(I) is an inhabitant; or
(II) may be found.
(F) Limitation.--A State commission that is
authorized to enforce the requirements of paragraph (6)
may not be authorized to impose additional obligations
beyond those established by the Commission in paragraph
(6)(A).
(d) Commission to Act if State Commission Will Not Act.--If a State
commission fails to carry out its enforcement responsibilities under
subsection (c)(7), the Commission shall--
(1) issue an order preempting the jurisdiction of the State
commission; and
(2) assume exclusive enforcement authority.
(e) Ability to Manage Public Rights-of-Way.--
(1) In general.--Except as provided in this section,
nothing in this Act shall affect the authority of a State or
local government to manage the public right-of-way in a manner
that is--
(A) non-discriminatory;
(B) competitively neutral; and
(C) consistent with applicable State law.
(2) Construction permits.--
(A) In general.--In managing the public rights-of-
way a State or local government may require the
issuance of a construction permit, without cost, to a
video service provider that is locating facilities in
such public right-of-way.
(B) Response work or repair.--If there is an
emergency necessitating response work or repair in the
public right-of-way, a video service provider may begin
such work or repair without prior approval from a State
or local government, if such provider notifies the
State or local government as promptly as possible after
beginning such work or repair.
(3) Timely action required.--In managing the public rights-
of-way a State or local government that is required to issue
permits or licenses for such use shall be required to act upon
any such request for use in a timely manner.
(4) New roads.--Nothing in this section shall effect the
ability of a State or local government to impose reasonable
limits on access to public rights-of-way associated with newly
constructed roads.
(f) Conforming Amendments to the Communications Act of 1934.--
(1) Pole attachments.--Section 224 of the Communications
Act of 1934 (47 U.S.C. 224) is amended--
(A) in subsection (a)(1), by striking ``local
exchange carrier'' and inserting ``telecommunications
carrier'';
(B) by striking subsections (a)(5) and (d)(3);
(C) in subsection (d)(3), in the first sentence by
striking all after ``cable television system'' through
the period at the end and inserting ``and facilities of
other video service providers, regardless of the nature
of the services provided.''; and
(D) by adding at the end the following:
``(j) Wireless Service Facility Exemption.--Nothing in this section
applies to a wireless service facility, including to towers of a
provider of mobile services.''.
(2) Carriage of local commercial television signals.--
Section 614(b)(4) of the Communications Act of 1934 (47 U.S.C.
534(b)(4)) is amended to read as follows:
``(4) Signal quality.--
``(A) Non-degradation.--The signals of local
commercial television stations that a cable operator
carries shall be carried without material degradation.
``(B) Carriage standards.--The Commission shall
adopt carriage standards to ensure that, to the extent
technically feasible, the quality of signal processing
and carriage provided by a cable system for the
carriage of local commercial television stations will
be no less than that provided by the system for
carriage of any other type of broadcast local
commercial television signal when using the same
transmission technology.''.
(3) Carriage of noncommercial educational television.--
Section 615(g)(2) of the Communications Act of 1934 (47 U.S.C.
535(g)(2)) is amended to read as follows--
``(2) Bandwith and technical quality.--A cable operator
shall--
``(A) provide each qualified local non-commercial
television station whose signal is carried in
accordance with this section with bandwith and
technical capacity equivalent to that provided to
commercial television stations carried on the cable
system when using the same transmission technology; and
``(B) carry the signal of each qualified local non-
commercial educated television station without material
degradation.''.
(4) Development of competition and diversity in video
programming distribution.--Section 628 of the Communications
Act of 1934 (47 U.S.C. 548) is amended to read as follows:
``SEC. 628. DEVELOPMENT OF COMPETITION AND DIVERSITY IN VIDEO
PROGRAMMING DISTRIBUTION.
``(a) Purpose.--The purpose of this section is--
``(1) to promote the public interest, convenience, and
necessity by increasing competition and diversity in the
multichannel video programming market;
``(2) to increase the availability of MVPD programming and
satellite broadcast programming to persons in rural and other
areas not currently able to receive such programming; and
``(3) to spur the development of communications
technologies.
``(b) Prohibition.--It shall be unlawful for an MVPD, an MVPD
programming vendor in which an MVPD has an attributable interest, or a
satellite broadcast programming vendor to engage in unfair methods of
competition or unfair or deceptive acts or practices, the purpose or
effect of which is to hinder significantly or to prevent any MVPD from
providing MVPD programming or satellite broadcast programming to
subscribers or consumers.
``(c) Regulations Required.--
``(1) Proceeding required.--Not later than 180 days after
the date of enactment of the Broadband Investment and Consumer
Choice Act, the Commission shall prescribe regulations to
specify particular conduct that is prohibited by subsection
(b), in order to promote--
``(A) the public interest, convenience, and
necessity by increasing competition and diversity in
the multichannel video programming market; and
``(B) the continuing development of communications
technologies.
``(2) Minimum contents of regulation.--The regulations
required under paragraph (1) shall--
``(A) establish effective safeguards to prevent an
MVPD which has an attributable interest in an MVPD
programming vendor or a satellite broadcast programming
vendor from unduly or improperly influencing the
decision of such vendor to sell, or the prices, terms,
and conditions of sale of, MVPD programming or
satellite broadcast programming to any unaffiliated
MVPD;
``(B) prohibit discrimination by an MVPD
programming vendor in which an MVPD has an attributable
interest or by a satellite broadcast programming vendor
in the prices, terms, and conditions of sale or
delivery of MVPD programming or satellite broadcast
programming among or between cable systems, cable
operators, or other MVPDs, or their agents or buying
groups, except that an MVPD programming vendor in which
an MVPD has an attributable interest or such a
satellite broadcast programming vendor shall not be
prohibited from--
``(i) imposing reasonable requirements
for--
``(I) creditworthiness;
``(II) offering of service; and
``(III) financial stability and
standards regarding character and
technical quality;
``(ii) establishing different prices,
terms, and conditions to take into account
actual and reasonable differences in the cost
of creation, sale, delivery, or transmission of
MVPD programming or satellite broadcast
programming;
``(iii) establishing different prices,
terms, and conditions which take into account
economies of scale, cost savings, or other
direct and legitimate economic benefits
reasonably attributable to the number of
subscribers served by the distributor; or
``(iv) entering into an exclusive contract
that is permitted under subparagraph (D);
``(C) prohibit practices, understandings,
arrangements, and activities, including exclusive
contracts for MVPD programming or satellite broadcast
programming between an MVPD and an MVPD programming
vendor or satellite broadcast programming vendor, that
prevent an MVPD from obtaining such programming from
any MVPD programming vendor in which an MVPD has an
attributable interest or any satellite broadcast
programming vendor in which an MVPD has an attributable
interest for distribution to persons in areas not
served by an MVPD as of the date of enactment of the
Broadband Investment and Consumer Choice Act; and
``(D) with respect to distribution to persons in
areas served by an MVPD, prohibit exclusive contracts
for MVPD programming or satellite broadcast programming
between an MVPD and an MVPD programming vendor in which
an MVPD has an attributable interest or a satellite
broadcast programming vendor in which an MVPD has an
attributable interest, unless the Commission determines
(in accordance with paragraph (4)) that such contract
is in the public interest.
``(3) Limitations.--
``(A) Geographic limitations.--Nothing in this
section shall require any person who is engaged in the
national or regional distribution of video programming
to make such programming available in any geographic
area beyond which such programming has been authorized
or licensed for distribution.
``(B) Applicability to satellite retransmissions.--
Nothing in this section shall apply--
``(i) to the signal of any broadcast
affiliate of a national television network or
other television signal that is retransmitted
by satellite but that is not satellite
broadcast programming; or
``(ii) to any internal satellite
communication of any broadcast network or cable
network that is not satellite broadcast
programming.
``(C) Exclusion of individual video programs.--
Nothing in this section shall apply to a specific
individual video program produced by an MVPD for local
distribution by that MVPD and not made available
directly or indirectly to unaffiliated MVPDs, if--
``(i) all other video programming carried
on a programming channel or network on which
the individual video program is carried, is
made available to unaffiliated MVPDs pursuant
to paragraph (2)(D); and
``(ii) such specific individual video
program is not the transmission of a sporting
event.
``(D) MVPD sports programming.--The prohibition set
forth in paragraph (2)(D), and the rules adopted by the
Commission pursuant to that paragraph, shall apply to
any MVPD programming that includes the transmission of
live sporting events, irrespective of whether an MVPD
has an attributable interest in the MVPD programming
vendor engaged in the production, creation, or
wholesale distribution of such MVPD programming.
``(4) Public interest determinations on exclusive
contacts.--In determining whether an exclusive contract is in
the public interest for purposes of paragraph (2)(D), the
Commission shall consider with respect to the effect of such
contract on the distribution of video programming in areas that
are served by an MVPD--
``(A) the effect of such exclusive contract on the
development of competition in local and national
multichannel video programming distribution markets;
``(B) the effect of such exclusive contract on
competition from multichannel video programming
distribution technologies other than cable;
``(C) the effect of such exclusive contract on the
attraction of capital investment in the production and
distribution of new MVPD programming;
``(D) the effect of such exclusive contract on
diversity of programming in the multichannel video
programming distribution market; and
``(E) the duration of the exclusive contract.
``(5) Sunset provision.--The prohibition required by
paragraph (2)(D) shall cease to be effective 10 years after the
date of enactment of the Broadband Investment and Consumer
Choice Act, unless the Commission finds, in a proceeding
conducted during the last year of such 10-year period, that
such prohibition continues to be necessary to preserve and
protect competition and diversity in the distribution of video
programming.
``(d) Adjudicatory Proceeding.--
``(1) In general.--An MVPD aggrieved by conduct that it
alleges constitutes a violation of subsection (b), or the
regulations of the Commission under subsection (c), may
commence an adjudicatory proceeding at the Commission.
``(2) Request for production of agreements.--In any
proceeding initiated under paragraph (1), the Commission shall
request from a party, and the party shall produce, such
agreements between the party and a third party relating to the
distribution of MVPD programming that the Commission believes
to be relevant to its decision regarding the matters at issue
in such adjudicatory proceeding.
``(3) Confidentiality to be maintained.--The production of
any agreement under paragraph (2) and its use in a Commission
decision in the adjudicatory proceeding under paragraph (1)
shall be subject to such provisions ensuring confidentiality as
the Commission may by regulation determine.
``(e) Remedies for Violations.--
``(1) Remedies authorized.--Upon completion of an
adjudicatory proceeding under subsection (d), the Commission
shall have the power to order appropriate remedies, including,
if necessary, the power to establish prices, terms, and
conditions of sale of programming to an aggrieved MVPD.
``(2) Additional remedies.--The remedies provided under
paragraph (1) are in addition to any remedy available to an
MVPD under title V or any other provision of this Act.
``(f) Procedures.--
``(1) In general.--The Commission shall prescribe
regulations to implement this section.
``(2) Content of regulations.--The regulations required
under paragraph (1) shall--
``(A) provide for an expedited review of any
complaints made pursuant to this section, including the
issuance of a final order terminating such review not
later than 120 days after the date on which the
complaint was filed;
``(B) establish procedures for the Commission to
collect such data as the Commission requires to carry
out this section, including the right to obtain copies
of all contracts and documents reflecting arrangements
and understandings alleged to violate this section; and
``(C) provide for penalties to be assessed against
any person filing a frivolous complaint pursuant to
this section.
``(g) Reports.--The Commission shall, beginning not later than 18
months after promulgation of the regulations required by subsection
(c), annually report to Congress on the status of competition in the
market for the delivery of video programming.
``(h) Exemptions for Prior Contracts.--
``(1) In general.--Nothing in this section shall affect--
``(A) any contract that grants exclusive
distribution rights to any person with respect to
satellite cable programming and that was entered into
on or before June 1, 1990; or
``(B) any contract that grants exclusive
distribution rights to any person with respect to MVPD
programming that is not satellite cable programming and
that was entered into on or before July 1, 2003, except
that the provisions of subsection (c)(2)(C) shall apply
for distribution to persons in areas not served by an
MVPD.
``(2) Limitation on renewals.--
``(A) Satellite cable programming contracts.--A
contract pertaining to satellite cable programming or
satellite broadcast programming that was entered into
on or before June 1, 1990, but that is renewed or
extended after the date of enactment of the Broadband
Investment and Consumer Choice Act shall not be exempt
under paragraph (1).
``(B) MVPD programming contracts.--A contract
pertaining to MVPD programming that is not satellite
cable programming that was entered into on or before
July 1, 2003, but that is renewed or extended after the
date of enactment of the Broadband Investment and
Consumer Choice Act shall not be exempt under paragraph
(1).
``(i) Definitions.--As used in this section:
``(1) MVPD.--The term `MVPD' means multichannel video
programming distributor.
``(2) MVPD programming.--The term `MVPD programming'
includes the following:
``(A) Direct receipt.--Video programming primarily
intended for the direct receipt by MVPDs for their
retransmission to MVPD subscribers (including any
ancillary data transmission).
``(B) Additional programming.--
``(i) In general.--Additional types of
programming content that the Commission
determines in a rulemaking proceeding to be
completed not later than 120 days from the date
of enactment of the Broadband Investment and
Consumer Choice Act, as of the time of such
rulemaking, of a type that is--
``(I) primarily intended for the
direct receipt by MVPDs for their
retransmission to MVPD subscribers,
regardless of whether such programming
content is--
``(aa) digital or analog;
``(bb) compressed or
uncompressed;
``(cc) encrypted or
unencrypted; or
``(dd) provided on a
serial, pay-per-view, or on
demand basis; and
``(II) without regard to the end
user device used to access such
programming or the mode of delivery of
such programming content to MVPDs.
``(ii) Considerations.--In making the
determination under clause (i), the Commission
shall consider the effect of technologies and
services that combine different forms of
content so that certain content or programming
is not included within the meaning of MVPD
programming solely because it is integrated
with other content that is of a type that is
primarily intended for the direct receipt by
MVPDs for their retransmission to MVPD
subscribers.
``(iii) Modification of programming defined
as mvpd programming.--At any time after 3 years
following the conclusion of the rulemaking
proceeding required under clause (ii), any
interested MVPD or MVPD programming vendor may
petition the Commission to modify the types of
additional programming content included by the
Commission within the definition of MVPD
programming in light of--
``(I) the purpose of this section;
``(II) market conditions at the
time of such petition; and
``(III) the factors to be
considered by the Commission under
clause (ii).
``(3) MVPD programming vendor.--The term `MVPD programming
vendor'--
``(A) means a person engaged in the production,
creation, or wholesale distribution for sale of MVPD
programming; and
``(B) does not include a satellite broadcast
programming vendor.
``(4) Satellite broadcast programming.--The term `satellite
broadcast programming' means broadcast video programming when--
``(A) such programming is retransmitted by
satellite; and
``(B) the entity retransmitting such programming is
not the broadcaster or an entity performing such
retransmission on behalf of and with the specific
consent of the broadcaster.
``(5) Satellite broadcast programming vendor.--The term
`satellite broadcast programming vendor' means a fixed service
satellite carrier that provides service pursuant to section 119
of title 17, United States Code, with respect to satellite
broadcast programming.
``(6) Satellite cable programming.--The term `satellite
cable programming' has the same meaning as in section 705,
except that such term does not include satellite broadcast
programming.
``(7) Satellite cable programming vendor.--The term
`satellite cable programming vendor'--
``(A) means a person engaged in the production,
creation, or wholesale distribution for sale of
satellite cable programming; and
``(B) does not include a satellite broadcast
programming vendor.
``(j) Common Carriers.--
``(1) In general.--Any provision that applies to an MVPD
under this section shall apply to a common carrier or its
affiliate that provides video programming by any means directly
to subscribers.
``(2) Attributable interest.--Any provision that applies to
an MVPD programming vendor in which an MVPD has an attributable
interest shall apply to any MVPD programming vendor in which
such common carrier has an attributable interest.
``(3) Limitation.--For the purposes of this subsection, 2
or fewer common officers or directors shall not by itself
establish an attributable interest by a common carrier in an
MVPD programming vendor (or its parent company).''.
(5) Regulations required.--Not later than 180 days after
the date of enactment of this Act, the Commission shall
prescribe such regulations as may be necessary to implement the
amendments made by this section.
(g) Rulemaking on Section 629.--Not later than January 1, 2008, the
Commission shall conduct a proceeding to determine the appropriateness
of the requirements under subsection (c)(1)(L) taking into account
changes and advancements in technology.
SEC. 14. COPYRIGHT LIMITATIONS ON EXCLUSIVE RIGHTS VIDEO SERVICE
PROVIDERS.
Section 111 of title 17, United States Code, shall for purposes of
this Act be deemed to extend to any secondary transmission, as that
term is defined in section 111, made by a video service provider.
SEC. 15. MUNICIPALLY OWNED NETWORKS.
(a) Protection Against Undue Government Competition With Private
Sector.--Any State or local government seeking to provide
communications service shall--
(1) provide conspicuous notice of the proposed scope of the
communications service to be provided, including--
(A) cost;
(B) services to be provided;
(C) coverage area;
(D) terms; and
(E) architecture; and
(2) give a detailed accounting of all proposed
accommodations that such government owned communications
service would enjoy, including--
(A) any free or below cost rights-of-way;
(B) any beneficial or preferential tax treatment;
(C) bonds, grants, or other source of funding
unavailable to non-governmental entities; and
(D) land, space in buildings, or other
considerations.
(b) Open Bids Must Be Made Available for Non-Governmental
Entities.--Not later than 90 days after posting of the notice required
under subsection (a)(1), a non-governmental entity shall have the
option of participating in an open bidding process conducted by a
neutral third party to provide such communications service on the same
terms, conditions, financing, rights-of- way, land, space, and
accommodations as secured by the State or local government.
(c) Preference for Non-Governmental Entities.--In the event of
identical bids under subsection (b), the neutral third party conducting
the bidding process shall give preference to a non-governmental entity.
(d) Open Access to Non-Governmental Entities.--If a State or local
government wins the bid under subsection (b), a non-governmental entity
shall have the ability to place facilities in the same conduit,
trenches, and locations as the State or local government for concurrent
or future use under the same conditions secured by the State or local
government.
(e) Grandfather Clause.--A State or local government providing
communications service as of the date of enactment of this Act shall be
exempt from this section, unless such State or local government--
(1) substantially enters into new lines of business; or
(2) substantially expands it communications service beyond
its current service area, as such service area existed upon the
date of enactment of this Act.
<all>
Introduced in Senate
Read twice and referred to the Committee on Commerce, Science, and Transportation.
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