KAILUA-KONA — One Hawaii legislator has come up with a novel concept to sidestep the Federal Communications Commission’s decision to repeal net neutrality protections — that Hawaii create a broadband network of its own and go into business for itself.
Maui Rep. Kaniela Ing said his plan to create a community- or publicly owned, high-speed broadband will circumnavigate internet service providers (ISPs), the so-called corporate gatekeepers of the internet, to which the FCC just granted power to distribute access to internet content.
“I’m looking at what if we didn’t have to rely on these giant monopolistic corporations for our internet at all?” Ing said. “What if we could take the internet into our own hands? This is the future.”
Ing said similar structures have worked in cities across the country, namely Chattanooga, Tennessee, which he said has one of the fastest and cheapest internet services in the United States.
The FCC’s action poses a threat to a free and open internet, allowing ISPs to restrict access by favoring certain websites or apps over others via slowed connection speeds or charging tiered rates for content. The repeal also includes a provision banning states from implementing net neutrality rules.
State legislators in California and Washington have already announced plans to use creative lawmaking in an attempt to undercut the FCC’s repeal of net neutrality. Hawaii’s Attorney General Doug Chin said Monday in an email to West Hawaii Today his office is in talks to potentially join a multi-state lawsuit contesting the FCC decision.
But Ing said those tactics won’t work, pointing to the federal government’s legal dominion over the issue and the hundreds of thousands of dollars Hawaii spent challenging President Donald Trump’s immigration policy through litigation to no avail.
“The FCC is in charge of regulating communications corporations across state lines. If we try to regulate this on the state level, it would violate the Constitution, particularly the interstate commerce clause,” he explained. “Rather than try to regulate (ISPs) on a state level, we’d form our own broadband unmoored from FCC control.”
The Attorney General was unable to respond to questions about the legality of Ing’s proposal by press time Monday. However, Ing said while he fully expects ISPs and the federal government to pursue legal or political recourse against a community-sponsored cooperative form of competition against ISP monopolies, he doesn’t believe they’d have much of a case.
Legal challenges will likely tie up implementation of the FCC rollback of net neutrality protections for months, but some internet users in Hawaii may be protected even longer.
Cindy McMillan, communications director for Gov. David Ige, wrote in an email to WHT Monday explaining that Spectrum will be forced by a merger agreement to abide by the 2015 Open Internet Order, or net neutrality protections, until May 2019.
Charter Communications, which owns Spectrum, merged with Oceanic Time Warner Cable in December 2015. As part of that agreement, the Department of Commerce and Consumer Affairs (DCCA) required the company operate under net neutrality protections for a period of three years. The merger was finalized in May 2016.
Hawaiian Telcom is Hawaii’s other large ISP, McMillan said. Just 11 days ago, the DCCA conditionally approved a merger between Cincinnati Bell, Hawaiian Telcom Holdco and Hawaiian Telcom Services Company Inc., which will transfer Hawaiian Telcom’s Oahu cable television franchise to Cincinnati Bell.
A condition of DCCA approval would also require Cincinnati Bell to abide by net neutrality protections for three years upon the official merger date.
McMillan said Cincinnati Bell was granted “… the option to seek relief if a change in the law results in competitive disadvantage or harm to (Hawaiian Telcom)” upon the end of the three-year requirement.
The merger, however, has not closed, as the Hawaii Public Utilities Commission and the FCC are still in the midst of the review process. Thus, it remains unclear whether the ISP that emerges from the deal, assuming a deal gets done, would be required to adhere to net neutrality protections.
McMillan said other ISPs that operate throughout the state, namely Verizon and AT&T, are not bound by any state-level agreements to maintain net neutrality protections.
Still, time remains of the essence, Ing said. His proposal would form a task force of experts to decide the course of action. He said lobbying efforts by ISPs, the level of urgency of his fellow legislators and public sentiment would all impact how quickly the state could implement his solution.
“The longer we wait, the more we’re exposed to corporate control of one of our main lines of communication,” said Ing, adding there’s much more at stake than the cost of Netflix or the speed with which consumers can access Facebook. “When these corporations control our internet, they control our ability to organize dissent and resistance and speak out against them.”
For Charter Communications’ part, the company released a statement last week saying it supports an open internet and has “no plans to change our practices.” Yet consumers and small businesses in Hawaii still feel at peril.
“If any way shape or form, throttling or website favoritism goes into play, it’s really going to hit our small businesses hard,” said Suzanne Shriner, president of the Kona Coffee Farmers Association. She added that more than 200 coffee companies sell product over the internet.
“We depend on open and free access to the networks to reach our clientele all over the world,” she said. “It’s absurd to me that here we are in 2017 having this discussion.”
As to taxpayer cost of the plan, Ing couldn’t guess at a ballpark figure. However, he said the right way to consider it isn’t as an extra cost, but as a substituted one.
“The real question is how much are you paying now?” Ing said. “If you’re going to pay less through taxes than you do through corporations and it’s going to be faster and under your control, then why not?”
