CONCEPT OF NETWORK NEUTRALITY

REGULATIONS REGARDING NETWORK NEUTRALITY

Article 3 of Regulation (EU) 2015/2120 of the European Parliament and of the Council provides
that:
Providers of internet access services shall treat all traffic equally, when
providing internet access services, without discrimination, restriction or
interference, and irrespective of the sender and receiver, the content accessed or
distributed, the applications or services used or provided, or the terminal
equipment used

NETWORK NEUTRALITY IN USA

In 2010, the Federal Communications Commission enacted the Open Internet Order rules
regarding net neutrality rules which sought to prohibit Internet Service Providers from giving
preferential treatment to certain websites. In April 2011, the U.S. House of Representatives voted
to block the ruling that banned ISPs from blocking traffic on their networks, but allowed
providers to “‘reasonably’ manage their networks and charge consumers based on usage.
Nonetheless, in 2014 a federal court partly repealed these regulations fueling efforts towards
stricter measures.
In 2015, the FCC under the Obama administration approved the Open Internet Order that
classified broadband internet service providers as common carriers under Title II of the
Communications Act. As a result of this reclassification, the FCC could impose stringent net
neutrality laws such that the ISPS would not be able to block, throttle, or prioritize internet
traffic. The Federal Communications Commission enacted the Open Internet Rules, which
prohibited internet providers from engaging with differential pricing for certain content or from
giving preferential treatment to certain websites.
However, during the Trump presidency in 2017, the US government’s view on net neutrality
changed. The Federal Communication Commission (FCC) voted to nullify the 2015 Open
Internet Order. This decision was viewed as a negative step for many digital rights and free
expression activists. It was criticized that the profits gained by ISP’s were prioritized over the
rights of consumers as it was giving privilege to others.
In 2018, the FCC’s repeal of the net neutrality rules became official and this decision was
challenged in the case of U.S. Telecom Association v Federal Communications Commission. The
DC Circuit Court ruled in favour of the FCC and upheld its repeal of the 2015 Rules. Despite
several attempts by various stakeholders to appeal the decision, the DC Court of Appeals
dismissed it on grounds that congress had not clearly authorized the FCC to issue the net
neutrality rule and that the rule violated the First Amendment.
However, the position was reversed again shortly after President Joe Biden assumed office in
2021 when he signed an Executive Order which included a call for the FCC to reinstate net
neutrality rules.
After the repealing of the federal net neutrality rule, some states have passed a state net neutrality
bill to protect consumers including California, Washington and Oregon.
The issue of network neutrality is still being debated on in USA and it has been difficult to reach
an agreement on the details of such legislation because of regulatory decisions and changes
within politics.

NET NEUTRALITY IN KENYA

There is no explicit policy of net neutrality applicable in Kenya. However, the National
Broaband Strategy 2018-2023 addresses the issue of network neutrality. The policy recommends
for formulation of regulations to govern internet content with regards to network neutrality and it
provides that the following net neutrality principles should apply:
a) No Blocking or Throttling: Access providers must not block, interfere with, discriminate
against, or reduce the capacity for delivery or use of any lawful content, application, service, user
software of user’s choice through the internet.
b) No Paid Prioritization or Fast Lanes: Access providers ought not to engage in partnerships
which give the specific content quicker rates or force the content suppliers to pay for such a
service.
c) Reasonable Traffic Management: The object should be technical in nature, rather than be
motivated by any selfish intentions, and designed for effective management of any given
network. Any such practices must be non-discriminatory and can never be applied into the
favour of associated Internet access provider contents or services, as well as blockage or throttle
of certain particular types of contents or services.
d) Technological Neutrality: The Internet service providers should strictly adhere to these net
neutrality principles, irrespective of whether they are facilitated through wires or wireless
networks.
(e) Transparency: Transparency on Network practices and the speed of traffic going through
those networks.
Although there is no specific set of net neutrality regulation, the Communications Authority of
Kenya may take action against any anti- competitive or discriminating practices undertaken by
ISPs as there is a regulatory framework on how they should conduct their business activities.
CONCLUSION
Network neutrality is critical to keeping the Internet free and open for everyone. It ensures that
providers of Internet access services do not leverage their control of the underlying network
infrastructure to interfere with consumers’ ability to access the online content, services, and
applications of their choice. Maintaining strong net neutrality protections in Kenya will ensure
consumer choice while preserving the ability of the entire Internet ecosystem to innovate.