In its newsletter on Monday, the Arcep college published an editorial to review the implications of a recent picket by the incumbent operator. Indeed, at the end of the summer, Orange submitted a Priority Question of Constitutionality (QPC) to the Conseil d'Etat in order to challenge the telecoms regulator's power to impose sanctions. But according to the college, Orange "[challenges] the pragmatic spirit of French-style regulation". With this initiative, the incumbent operator "does not attack the Arcep so much but attacks the French regulatory model more broadly", says Sébastien Soriano, President of the Arcep.

The sanctioning power of the Arcep is vital for the proper functioning of the current regulation, the college stresses in its editorial. In particular, it would not be possible to benefit from "the commitments that operators can make on competitive or territorial coverage issues", argues the telecoms police officer. "Without control and sanctions, these commitments would only be paper," he insists.

Very upset by the initiative of the incumbent operator, Sébastien Soriano said "I am not sure that Orange has measured all the consequences". The President of Arcep says that if his power of sanction were to disappear, then France would have to choose another regulatory model. Wishing to take advantage of the "synergy between infrastructures and services", it decided to leave the incumbent operator in charge of its network for its deployments.

Sébastien Soriano explains "We felt that Orange, because of its need to win back customers in the fixed Internet, had an incentive to invest in fibre", seeing it as a "positive market dynamic. But the counterpart of this choice is that the regulator must check on a daily basis that Orange is not taking advantage of this situation by giving itself an advantage on the retail market. This is called non-discrimination. To ensure this, regular monitoring and sanction procedures are required. Without them, we would potentially be forced to choose much more radical regulatory approaches..."

And ends by correcting: "It's not a threat, it's factual".

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Source : La Tribune

The incumbent operator has submitted a Priority Question of Constitutionality to the Council of State, which can thus deprive the telecom police of its sanctioning powers and render the operators' commitments ineffective.

Unveiled on Tuesday by Le Monde, this request challenges the legal validity of a formal notice sent to it by Arcep last January. Indeed, the regulator criticized Orange for not respecting its obligations towards other telecom operators when it makes its fixed networks available to them. For the time being, this request is only at the preliminary stage. It will only be examined by the "Wise Men" of the Constitutional Council if the Council of State decides to transfer the file to it.

But in reality, it is a much broader problem. The incumbent operator argues that Arcep is both judge and party at the same time and that there is too much permeability between its three missions: to enact rules for the market, to control telecom operators and also to sanction them in the event of non-compliance with their obligations.
The regulator would de facto be deprived of its power to impose sanctions if the Conseil d'État were to rule in favour of the operator. In short, if the Arcep can no longer sanction abuses, the shipyards will fall behind and the objectives to boost French access to very high speed will not be met.

Orange assures that the procedure is a legal issue and will not affect the commitments made. The operator points out that in 2013 the Arcep has already been deprived of its power to impose sanctions in a similar procedure.
 

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Source : Les Echos