Are Fair Usage Policies For The Good Of Mankind?

Do you live in an apartment block where you can never seem to connect to the internet except for that window of 27 seconds on Saturday at 3.15 pm?

Now, does this apartment have a landlady who wants you to get your Zuku or Safaricom connectivity off of her, and only her, where everyone in the building has the same password? You can officially blame them for Safaricom’s fair usage policies – from now on known as FUP.

By now, we all know internet usage bumped up considerably during those first critical months of COVID-19 especially, Safaricom discovered, in July 2020. Of course, we spent it on work and study, not at all bingeing on Netflix… In fact, we consumed so much bandwidth the Communications Authority of Kenya (CA) asked internet service providers (ISPs) to lower the cost on some of their services, more specifically, the Internet, to buffer Kenyans during the lockdown. And just like that, the internet, or at least access to it, became a basic need. We needed it like we did food and air. At this point, no one is no longer debating the omnipotent nature of the Internet. How could we? The 2019 census revealed a shocking claim – that only 3 per cent of the population is covered when it comes to the internet. 3 per cent!

Should we actually complain?
This is why when Safaricom announced their FUP, #KOT went to war. Why would an ISP institute a FUP? It turns out there are good reasons behind this. Also, what on God’s green earth is a FUP?

The simplest definition I found was from Broadband Genie. “A fair usage policy (FUP) is part of the terms and conditions in a broadband provider contract which limits how a broadband connection can be used.” FUP can restrict data usage, but it is not, in and of itself, the restriction of data usage. That is but one of the ways to pull off a FUP.

Here is why you best embrace that FUP ASAP. A FUP makes sure that the best quality of broadband is available to the maximum number of subscribers at all times. It prevents heavy users from eating into the other consumer’s bandwidth by cutting down data usage or throttling down the abuser’s internet usage. It stops that landlady smack dab in her tracks the next time she thinks she is a bandwidth distributor. In case you were wondering, Telkom, Zuku and Faiba have all implemented a FUP, so there.

Just as much as there are reasons for something, there are reasons against it.
– Unfair competitive edge for ISPs who are geographically dominant because they know customers won’t have better options.
– What if ISPs actually take on more clients than their infrastructure can handle and use a FUP as a cover-up?
– Should ISPs be allowed to keep on advertising their subscription plans as unlimited in a world where the customer’s usage falls under a FUP?

Fair usage results
This, naturally, unearths a series of unending questions such as does this affect meaningful connectivity for customers? Is throttled down internet still internet? What happens to those who rely on heavy usage? What does the law say about FUPs and is there a balance between FUP and internet freedom usage? Is the internet a basic need? Are these progressive or retrogressive rules? Can providers get a fair return on their packages based on services falling under FUP? How will the industry attract more players and investment? To answer these, and other questions, we need to find out why Safaricom made this decision.

Franklin Ocharo from Safaricom starts off by addressing the elephant in the room – Safaricom’s FUP. “Fair use is to ensure great service can be given to customers without others hogging it. The network is designed to serve a certain number of users. Clogged traffic affects other users on the line. Having observed usage, we looked at what point a normal user can consume data when working from home or schooling. That has been used to set the cap. The objective is not to limit customers but to provide a greater experience to all.”

To be fair to Safaricom, they did double their speeds last year, something which allowed for a redistribution of service. Which subsequently placed Safaricom in a position where customers have to get what is promised. And resellers, it so happens, are the pebble in a virtual boot and terrible business for the industry collectively.
It would, of course, help, if investors could get a fair return. This is where resellers turn into thorns. “When you connect an apartment block of 50 homes, and three users take the top package and rewire the rest of the apartment block, then it means you’re getting very little out of what you intended, and this then hinders development. You need to balance. How do you have an ecosystem where you can offer your services and get a fair return which will then attract investment and even more players into this space?” states Ocharo.

The importance of an ally
In all this, Safaricom has an interesting ally – Liquid Telecom. Ben Roberts, Chief Technology Officer (CTO) Liquid Telecom says “As Liquid Telecom, we haven’t got a great deal of fibre to the home in this country but have done large home deployments in other countries. I’ve been involved in high-level planning and strategy behind building networks.”

Bandwidth being scarce, you to share it by quantity. By GB. Think of it like electricity in a grid; like a resource, it costs us money to generate that resource. When we get to home broadband fibre, the economics are actually typed differently. Two economic factors come into place when you factor in home fibre.

1. The cost of international bandwidth – the cost per megabits per second, delivered at the data centre and by speed. There are common practices in how these are calculated and sold.
2. The Last Mile economy – when you take fibre to the home, it is about return on investment. We would love to build more fibre in Kenya. We have not found sufficient ROI to build fibre, which is why we have not built it. Safaricom has ventured into that. We have done it in other countries.
Each property you pass with fixed bandwidth or infrastructure costs you a certain amount of money per house passed, and then you get an additional increment per house connected. Each house passed might cost you around $500. If you then pass 1,000 homes, then a big set of homes take up your service, then you’ve probably got a case of ROI there. If only 5 per cent of homes take up this service, some of those just use more bandwidth and sell it to their neighbours, unfortunately, you don’t have a business.

These parasitic beings are politely called resellers by the industry. People who abuse their product to distribute and unfairly share it. Roberts has no love for them, likening them to lawbreakers who rewire KPLC cables to power their homes.

“We have had people cutting into our fibre, wiring it into KPLC poles illegally. This is a danger to public health. Let’s not put them down as guys we want to defend.” He does, however, concede that there are legitimate heavy users particularly video gamers. They and large families who have a lot of devices in the home – Mum and Dad are watching Netflix, five kids are on their tablets – they might also be heavy users.

“We as operators do our homework. We set our product within the users’ limits to cater to their needs. The 1TB that is in the Safaricom packages is quite a lot. It is quite a generous offer. I am not here to promote my competition, but it is quite a good offer, Roberts affirms. Yes, there might be legitimate users who use more than 1TB, says Robert. “I am probably one of those. I probably use more than a terabyte, but most people using up that much are probably using it to download movies on DVDs so that they can illegally sell pirated copies. They are mostly people who are doing something that is not legal.”

Often, Roberts clarifies, “we don’t publish FUPs. And it has been brave of Safaricom to publish their limits. Of course, there has been some backlash, but I am happy that they were transparent, and more transparency should be encouraged.”

In that spirit, let us be honest. ISPs are here to make a profit. Yes, we are connected to each other and the world, which is noble as heck. But for us to keep enjoying surfing, we need to make financial sense. These are not just the Big Boys of the local industry with a huge chunk of market share. Some of them are actually defensible. They are the ISPs that would fall through the cracks were it not for the fact that they have improved access to the internet, and it makes good business sense for them as resellers.

Do your honework
Remember what the world was like before you installed Zuku because you did not think it offered anything meaningful to your life? Remember the number of years it took for Safaricom to get into home fibre? Granted, Safaricom seems like a behemoth in a little pond. But before they were everywhere, they started small somewhere. “What usually happens is that first, the small players come into the market, then the bigger players later come in to get their share of the market,”’ Liz Orembo, a Fellow at KICTANet, a multi-stakeholder platform that includes government, regulators, ISPs right down to CSOs who come together to discuss ICT policy. Right now, KICTanet is having intense debates on FUPs. She reiterates what Ocharo said. That there is always extensive research underneath the surface that goes on under the surface before the capping is instituted.

But, she takes issue with how the FUPs are arrived at and how they are implemented. “It is but similar to what WhatsApp did. They knew they had a bigger market share and that you can’t opt out seeing how we are heavily relying on that service. This is an unethical approach. When signing a contract, you should have a reasonable amount of time. You should also have consent. Safaricom’s FUP kicks in in March. If you are in the middle of the month then what options do you have even if you are a heavy bandwidth user.” She then raises a valid point. “I don’t think there was enough consumer information from that end and that would bring up a number of ethical questions.” There is also the fact that we do not seem to have the infrastructure for the heavy bandwidth user.
So, who is it that bestows ISPs with the powers to declare FUPs?

Leave that to the Communications Authority of Kenya (CA). They grant ISPs licenses with terms and conditions attached. When rolling out data services, CA has a tariff mandate. ISPs are allowed to charge whatever they deem fit. Within reason, I should like to think. They do, however, also need to file the intended cost with the Authority. Any time there is a proposed change, such as a FUP, the ISP must communicate with the Authority. In the event that the consumer is not happy, or feels a change is unfair, they can, note carefully, first approach the alleged unfair ISP. If they feel this is not addressed to their satisfaction, they can then, and only then, approach the Authority, who will have to handle this complaint within the span of a day. Because CA cannot interfere in the contract between the ISP and the consumer.

What you don’t know
“There is need for consumer awareness on these issues. It is good for consumers to understand FUP. They need to appreciate the difference between data limit and fair usage. It behoves the ISPs to go the extra mile and inform consumers what it is, why it is and when it is. There is a need to do a lot of public awareness, says Robin Busolo, a lawyer with CA.

Inside the policies, says Ocharo, “We need to balance what we are offering against the services we can provide. For instance, we based our policies on the highest usage we have ever seen when everyone was at home working, schooling and being entertained.” They intend to introduce a USSD so that consumers can assess how much their usage is. “It will give you some comfort to know exactly what your average usage is.”

That being said, it is Roberts who sums it up. “People think there is a monopoly, and they have choices. We are all competing.”