RELATING TO CONSUMER PROTECTION.

SB1036

THE SENATE

S.B. NO.

1036

THIRTY-THIRD LEGISLATURE, 2025

STATE OF HAWAII

A BILL FOR AN ACT

RELATING
TO CONSUMER PROTECTION
.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

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SECTION 1.
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The
legislature finds that the State has a duty to protect and promote the safety,
life, public health, public convenience, general prosperity, and well-being of its
residents.
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Almost every sector of the State's
economy, democracy, and society is dependent on the open and neutral internet
that supports vital functions regulated under the power of the State, including
but not limited to each of the following:

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(1)
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Police
and emergency services;

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(2)
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Health
and safety services and infrastructure;

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(3)
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Utility
services and infrastructure;

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(4)
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Transportation
infrastructure and services and the expansion of zero and low emission
transportation options;

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(5)
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Government
services, voting, and democratic decision-making processes;

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(6)
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Education;

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(7)
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Business
and economic activity;

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(8)
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Environmental
monitoring and protection, and achievement of state environmental goals; and

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(9)
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Land
use regulation.

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Accordingly, the purpose of this Act is to
ensure that the provision of broadband internet services is safely and fairly
delivered to all users in the State by prohibiting:

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(1)
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Fixed
and mobile internet service providers that provide broadband internet access
service from engaging in certain actions concerning the treatment of internet
traffic;

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(2)
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Among
other things, blocking lawful content, applications, services, or nonharmful
devices, impairing or degrading lawful internet traffic on the basis of content
or application or service, use of a nonharmful device, and certain practices
relating to zero-rating, as defined; and

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(3)
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Fixed
and mobile internet service providers from offering or providing services other
than broadband internet access services that are delivered over the same
last-mile connection as the broadband internet access service if those services
have the purpose or effect of evading prohibitions or negatively affect the
performance of broadband internet access service.

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SECTION 2.
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The Hawaii Revised Statutes is amended by adding a new chapter to be
appropriately designated and to read as follows:

"
Chapter

INTERNET
NEUTRALITY

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-1
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Definitions.
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As used in this chapter:

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"Application-agnostic" means not
differentiating on the basis of source, destination, internet content,
application, service, or device, or class or internet content, application,
service, or device.

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"Broadband internet access
service" means a mass-market retail service by wire or radio provided to
customers in the State that provides the capability to transmit data to and
receive data from all or substantively all internet endpoints, including but
not limited to any capabilities that are incidental to and enable the operation
of the communications service, but excluding dial-up internet access
service.
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"Broadband internet access
service" also encompasses any service provided to customers in the State
that provides a functional equivalent of that service or is used to evade the
protections described in this chapter.

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"Class of internet content,
application, service, or device" means internet content or a group of
internet applications, services, or devices, sharing a common characteristic,
including but not limited to sharing the same source or destination, belonging
to the same application- or transport-layer protocol, or having similar
technical sequencing, or timing of packets, or sensitivity to delay.

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"Content, applications, or
services" means all internet traffic transmitted to or from end users of a
broadband internet access service, including but not limited to traffic that
may not fit clearly into any of these categories.

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"Edge provider" means any
individual or entity that provides any content, application, or service over
the Internet, and any individual or entity that provides a device used for
accessing any content, application, or service over the Internet.

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"End user" means any individual
or entity that uses a broadband internet access service.

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"Enterprise service offering�"
means an offering to larger organizations through customized or individually
negotiated arrangements or special access services.

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"Fixed broadband internet access
service" means a broadband internet access service that serves end users
primarily at fixed endpoints using stationary equipment.
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Fixed broadband internet access service
includes, but is not limited to fixed wireless services such as fixed
unlicensed wireless services and fixed satellite services.

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"Fixed internet service provider"
means a business that provides fixed broadband internet access service to an
individual, corporation, government, or other customer in the State.

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"Impairing or degrading lawful internet
traffic on the basis of internet content, application, or service, or use of a
nonharmful device" means impairing or degrading any of the following:

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(1)
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Particular
content, applications, or services;

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(2)
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Particular
classes of content, applications, or services;

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(3)
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Lawful
internet traffic to particular nonharmful devices; or

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(4)
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Lawful
internet traffic to particular classes of nonharmful devices; and

includes
differentiating, positively or negatively and without limitation, between any
of the following:

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(1)
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Particular
content, applications, or services or particular classes of content,
applications, or services; or

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(2)
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Lawful
internet traffic to particular nonharmful devices or particular classes of
nonharmful devices.

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"Internet service provider" means
a business that provides broadband internet access service to an individual,
corporation, government, or other customer in the State.

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"ISP traffic exchange" means the
exchange of internet traffic destined for, or originating from, an internet
service provider�s end users between the internet service provider�s network
and another individual or entity, including but not limited to an edge
provider, content delivery network, or other network operator.

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"ISP traffic exchange agreement"
means an agreement between an internet service provider and another individual
or entity, including but not limited to an edge provider, content delivery
network, or other network operator, to exchange internet traffic destined for,
or originating from, an internet service provider�s end users between the internet
service provider�s network and the other individual or entity.

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"Mass market service" means a
service marketed and sold on a standardized basis to residential customers,
small businesses, and other customers, including but not limited to schools,
institutions of higher learning, and libraries.
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"Mass market services" also includes
broadband internet access services purchased with support of the federal E-Rate
Program and the Rural Health Care Program and similar programs at the federal
and state level, regardless of whether they are customized or individually
negotiated, as well as any broadband internet access service offered using
networks supported by the federal Connect America Fund or similar programs at
the federal and state level.
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"Mass
market" service does not include enterprise service offerings.

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"Mobile broadband internet access
service" means a broadband internet access service that serves end users
primarily using mobile stations.
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Mobile
broadband internet access service includes but is not limited to broadband internet
access services that use smartphones or mobile network enabled tablets as the
primary endpoints for connection to the Internet, as well as mobile satellite
broadband services.

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"Mobile internet service provider"
means a business that provides mobile broadband internet access service to an
individual, corporation, government, or other customer in the State.

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"Mobile station" means a radio
communication station capable of being moved and ordinarily does move.

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"Paid prioritization" means the
management of an internet service provider�s network to directly or indirectly
favor some traffic over other traffic, including but not limited to the use of
techniques such as traffic shaping, prioritization, resource reservation, or
other forms of preferential traffic management that is:

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(1)
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In
exchange for consideration, monetary or otherwise, from a third party; or

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(2)
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To
benefit an affiliated entity.

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"Reasonable network management"
means a network management practice that is reasonable.
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A network management practice is a practice
that has a primarily technical network management justification, but does not
include other business practices.
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A
network management practice is reasonable if it is primarily used for and
tailored to achieving a legitimate network management purpose, taking into
account the particular network architecture and technology of the broadband internet
access service, and is as application-agnostic as possible.

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"Zero-rating" means exempting
some internet traffic from a customer�s data usage allowance.

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Obligations of fixed service providers.
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(a)
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It
shall be unlawful for a fixed internet service provider, insofar as the
provider is engaged in providing fixed broadband internet access service, to
engage in any of the following activities:

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(1)
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Blocking
lawful content, applications, services, or nonharmful devices, subject to
reasonable network management;

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(2)
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Impairing
or degrading lawful internet traffic on the basis of content, application or
service, or use of a nonharmful device, subject to reasonable network
management;

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(3)
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Requiring
consideration, monetary or otherwise, from an edge provider, including but not
limited to in exchange for any of the following:

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(A)
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Delivering
internet traffic to, and carrying internet traffic from, the internet service
provider's end users;

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(B)
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Avoiding
having the edge provider's content, application, service, or nonharmful device
blocked from reaching the internet service provider's end users; or

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(C)
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Avoiding
having the edge provider's content, application, service, or nonharmful device
impaired or degraded;

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(4)
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Engaging
in paid prioritization;

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(5)
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Engaging
in zero-rating in exchange for consideration, monetary or otherwise, from a
third party;

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(6)
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Zero-rating
some internet content, applications, services, or devices in a category of
internet content, applications, services, or devices but not the entire
category;

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(7)
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Unreasonably
interfering with or unreasonably disadvantaging an end user's ability to
select, access, and use broadband internet access service or lawful internet
content, applications, services, or devices available to end users, provided
that:

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(A)
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Reasonable
network management shall not be a violation of this paragraph; and

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(B)
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Zero-rating
internet traffic in application-agnostic ways shall not be a violation of this
paragraph if no consideration, monetary or otherwise, is provided by any third
party in exchange for the internet service provider's decision whether to
zero-rate traffic;

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(8)
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Failing
to publicly disclose accurate information regarding the network management
practices, performances, and commercial term of its broadband internet access
services sufficient for consumers to make informed choices regarding use of
those services and for content, application, service, and device providers to
develop, market, and maintain internet offerings; or

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(9)
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Engaging
in practices, including but not limited to agreements with respect to or in
connection with ISP traffic exchange that have the purpose or effect of evading
the prohibitions contained in this section and section -3;
provided that nothing in this paragraph shall be construed to prohibit internet
service providers from entering into ISP traffic exchange agreements that do
not evade the prohibitions contained in this section and section
-3.

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(b)
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It shall be unlawful for a mobile internet service provider, insofar as
the provider is engaged in providing mobile broadband internet access service,
to engage in any of the activities described in subsection (a).

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Last-mile service provision requirements.
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(a)
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It
shall be unlawful for a fixed internet service provider to offer or provide
services other than broadband internet access services that are delivered over
the same last-mile connection as the broadband internet access service if those
services:

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(1)
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Have
the purpose or effect of evading the prohibitions in section
-2; or

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(2)
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Negatively
affect the performance of broadband internet access service.

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(b)
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It
shall be unlawful for a mobile internet service provider to offer or provide
services other than broadband internet access services that are delivered over
the same last-mile connection as the broadband internet access service if those
services include any of the activities specified in subsection (a)(1) and (2).

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(c)
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Nothing
in this section shall be construed to prohibit a fixed or mobile internet
service provider from offering or providing services other than broadband
internet access services that are delivered over the same last-mile connection
as the broadband internet access service and do not otherwise violate this
section.

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Exemptions.
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(a)
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Nothing in this chapter shall supersede any obligation or authorization
a fixed or mobile internet service provider may have to address the needs of
emergency communications or law enforcement, public safety, or national
security authorities, consistent with or as permitted by applicable law, or
limit the provider's ability to do so.

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(b)
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Nothing in this chapter shall prohibit reasonable efforts by a fixed or
mobile internet service provider to address copyright infringement or other
unlawful activity.

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(c)
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Notwithstanding any other law, any waiver of the provisions of this chapter
shall be contrary to public policy and shall be unenforceable and void."

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SECTION 3.
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This Act does not affect rights and duties that matured, penalties that
were incurred, and proceedings that were begun before its effective date.

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SECTION 4.
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If any provision of this Act, or the application thereof to any person
or circumstance, is held invalid, the invalidity does not affect other
provisions or applications of the Act that can be given effect without the
invalid provision or application, and to this end the provisions of this Act
are severable.

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SECTION 5.
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This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

Report Title:

Net
Neutrality Principles; Broadband Internet Access Service; Communications; Internet
Service Providers; Protections

Description:

Codifies
net neutrality principles by prohibiting fixed and mobile internet service
providers that provide broadband internet access service from engaging in certain
practices concerning the treatment of internet traffic.
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Among other things, prohibits internet
service providers from blocking internet traffic on the basis of internet content,
application, or service, engaging in paid prioritization or zero-rating internet
traffic in exchange for consideration, monetary or otherwise.

The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.