Senator Patrick Leahy and Congresswoman Doris Matsui have introduced bicameral legislation to require the Federal Communications Commission (FCC) to ban paid prioritization agreements between a broadband provider and a content provider.

The expectation is that if ISPs charge for prioritization, it will favor larger companies who can afford to pay for the privilege, to the disadvantage of smaller competitors. Leahy and Matsui introduced the Online Competition and Consumer Choice Act to ensure start-ups and entrepreneurs have access to the marketplace and ensuring consumers can access all content equally.

The bill directs the FCC to “prohibit a broadband provider from entering into an agreement with an edge provider under which the broadband provider agrees, for consideration, in transmitting network traffic over the broadband Internet access service of an end user, to give preferential treatment or priority to the traffic of such edge provider over the traffic of other edge providers.”

The bill also prohibits broadband providers from prioritizing their own traffic.

The bill does not appear to address peering agreements, which the Comcast-Netflix agreement is nominally considered to be.

“Americans are speaking loud and clear – they want an Internet that is a platform for free expression and innovation, where the best ideas and services can reach consumers based on merit rather than based on a financial relationship with a broadband provider,” said Senator Leahy, who will hold a field hearing on the issue of net neutrality in Vermont next month. “The Online Competition and Consumer Choice Act would protect consumers and support a free and open Internet. The Senate should pass this important piece of legislation.”

On May 15, 2014, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rulemaking Proposal (NPRM) seeking public comments on how best to restore the Open Internet rules that were struck down by the D.C. Circuit earlier this year. One of the questions that the FCC poses in its NPRM is whether certain practices, such as paid prioritization, should be banned entirely.

The NCTA’s response was: “The cable industry has consistently stated our support for sensible but clear rules which ensure that American consumers continue to enjoy an open and unfettered Internet experience.  Cable companies do not engage in paid prioritization and have every incentive to ensure that all consumers enjoy fast and robust Internet services.  We are confident that Chairman Wheeler can restore effective rules under the path that the Court suggested, and we will work with all parties to preserve consumer protections enforced by the FCC and Federal Trade Commission.”

Senator Al Franken, Congressman Henry Waxman, and Congresswoman Anna Eshoo are original cosponsors of the legislation. All are Democrats.