Hawaii Becomes Fourth State To Require Net Neutrality

Hawaii has joined three other states in requiring broadband providers to follow net neutrality rules as a condition of obtaining state contracts.

Hawaii Governor David Ige signed an executive order Monday mandating that agencies contract only with broadband providers that promise to adhere to net neutrality principles. Among other requirements, broadband providers must allow customers to access "all lawful content and applications," and must "treat all data fairly without favoring or blocking particular products or websites."

The state joins Montana, New Jersey and New York in requiring providers to follow net neutrality rules as a condition of obtaining state contracts. In 2015, the FCC passed a set of net neutrality rules that prohibited carriers from blocking or throttling traffic and from engaging in paid prioritization, among other restrictions.



The current Republican-controlled FCC voted in December to repeal the Obama-era rules. The agency also voted to prohibit states from creating or enforcing their own state-specific net neutrality regulations.

The agency took that step despite overwhelming public support for net neutrality. A survey conducted by the University of Maryland last year, shortly before the agency's vote, revealed that 83% of Americans -- including 75% of Republicans -- disapproved of the planned repeal.

In Congress, the issue is more partisan. Lawmakers on Capitol Hill are trying to muster support for a Congressional Resolution of Disapproval, which would repeal the FCC's recent vote. So far, however, only one Republican Senator has signed on to the resolution.

Democratic lawmakers aren't the only ones who oppose the rules. Attorneys general in 22 states and the District of Columbia have filed a lawsuit seeking to overturn the FCC's recent vote to repeal the rules.

It's not yet known whether courts will uphold the FCC's repeal order -- including the prohibition on state rules. But even if the FCC's order is upheld in its entirety, it's not unclear whether that order would prevent state governors from setting out contract conditions.

The libertarian group TechFreedom, which supported the FCC's decision to repeal the 2015 rules, is skeptical about the recent orders' validity.

"Each and every one of these orders will be challenged," TechFreedom President Berin Szoka tells MediaPost.

He adds that the recent spate of executive orders allow Democratic governors to "score a political hit" with a simple stroke of the pen. "It's political theater," he says.

Szoka says that whether the executive orders will survive a challenge likely depends on specific facts in each state. But he says one key question will be whether the orders mark an attempt by states to impose policies that run counter to the federal government's policy. If so, broadband providers will have a good argument that the orders are invalid, Szoka says.

But net neutrality advocates say there's a strong case that the recent executive orders are valid. The advocates argue that when state agencies act as purchasers, they are entitled to wide latitude in deciding how to spend their money.

"States have vast powers when it comes to their decisions as consumers in the marketplace," Public Knowledge Senior Vice President Harold Feld writes. "While no power is without limit, nothing stops a state from saying it will only purchase services from vendors that meet its standards or conditions. If you don’t like the conditions, don’t compete for the contract."

The state of Montana makes a similar argument. "Companies that don’t like it don’t have to do business with the State -- nothing stops ISPs from selling dumpy internet plans in Montana if they insist," the governor's office writes.

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