Free had been involved for several years in co-financing the FTTH networks deployed by Orange and was challenging several terms of its contract with the incumbent operator. The Regulatory Authority had settled this dispute in Free's favour, but Orange had been challenging the legality of the dispute since then. The Paris Court of Appeal upheld Arcep's decision in an order dated 26th September 2019.

The planned renewal of the term and conditions of access to Orange's infrastructure was contested by Free. Arcep confirmed that they did not meet Free's needs for visibility and transparency and therefore imposed on Orange to grant a right of access for a defined period of time and at least 40 years. In its decision, the Court of Appeal confirmed that these conditions are "not sufficiently precise in view of Free's need for visibility over the effective duration of this right".

In addition, Arcep considered that it was justified and reasonable for Free to obtain information on the formation of access tariffs for Orange FTTH networks in less dense private initiative areas. This was also supported by the Court of Appeal, which stated that these tariffs were "directly linked to the financial terms of the bid, which it seeks to ensure is fair".

Finally, the Regulatory Authority considered that the incumbent operator should allow Free to connect mobile base stations in less dense areas of private initiative via the extra optical fibres of the FTTH network deployed by Orange and co-financed by Free. A point that has not been contested by Orange in its appeal.

In addition, the Paris Court of Appeal held that the decision did not affect business confidentiality and confirmed Arcep's analysis. And noting that the information that Orange must provide to Free pursuant to the decision "is characterized by a very high degree of aggregation, both geographically and by expense items".

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Source : Le Monde Informatique

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