Key Benefits:
The Telecommunications Regulatory Authority,
Considering Directive 97/66/EC of the European Parliament and the Council of 15 December 1997 on the processing of personal data and the protection of privacy in the telecommunications sector;
Considering Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of the provision of an open network (ONP) to voice telephone and the establishment of a universal telecommunications service in a competitive environment;
Considering the Post and Telecommunications Code, including articles L. 33-4, L. 33-4-1 and L. 35-4;
Considering the Criminal Code, including articles 121-2, 131-41, 226-18 and 226-21;
Having regard to Act No. 78-17 of 6 January 1978 on computers, files and freedoms;
Having regard to Act No. 89-1008 of 31 December 1989 on the development of commercial and artisanal enterprises and the improvement of their economic and social environment, including Article 10;
Having regard to Decree No. 96-1225 of 27 December 1996 approving the specifications of France Télécom;
In view of the letter from the Secretary of State to the industry dated 9 January 2002 striking for advice the Authority on the draft decree on the universal directory and amending the postal and telecommunications code;
After deliberating on 21 February 2002,
The Telecommunications Regulatory Authority, concerned with the interest of consumers and the development of competition, welcomes this project. It creates the conditions for the implementation of the universal directory, gathering information on all users of networks open to fixed and mobile audiences as they did not object to their registration on these published user lists. The Autorité notes with satisfaction that the rights of the consumer are reaffirmed to the extent that, on the one hand, the exercise of the right not to be mentioned on the lists of subscribers or published users is free and where, on the other hand, the operators now have the obligation to propose the possibility not to be mentioned on the lists of subscribers or users accessible by an information service.
1. Creation of two separate markets
The drafting of article L. 33-4 and article R. 10-4 of the draft decree on the universal directory reveals that the use of subscribers' lists provided by the operators is permitted in this framework only for the "universal directory and the provision of universal information service", the lists provided gathering "all subscribers or users to whom the operators have assigned one or more numbers of the national numbering plan". The universality of these services is also defined in Article L. 35-4, which states that this list is "all subscribers to open networks to the public". This reading is corroborated by paragraphs 4 and 5 of Article R. 10-4, which require, on the one hand, the operators to provide the completeness of their list and, on the other, the purchasers to use these lists only to edit a universal directory and to provide a universal service of information, unless otherwise agreed.
In this way, two contracts are established, with assignment regimes of different lists:
- on the one hand, a regulated market which is that of assignments for purposes of directory services and universal information, under technical and financial conditions governed by the specific law of telecommunications, disputes relating to the terms of assignment under the jurisdiction of the Authority;
- on the other hand, a free market that is that of assignments for other purposes, including for purposes of commercial prospecting under conditions under common law and competition law, disputes under the common law judge or the Conseil de la concurrence.
These provisions also result in the fact that telecommunications operators or their distributors remain in practice the only source for the market of ultilized data for commercial prospecting purposes, except contractual provisions contrary to each other and the providers of directory services or universal information.
For example, France Télécom, as an operator, will be able to freely assign the data concerning its own subscribers but, as a provider of a directory and universal information service, it will not be able to assign the complete list of subscribers it has incorporated in this framework, without having the agreement of all the operators that have brought it their list.
The Autorité notes that the publication of this decree is without consequence on decisions emanating from the courts of common law or the Conseil de la concurrence concerning the assignment of lists for commercial prospecting, even because of the separation of the regulatory regime between these two markets.
2. The definition of the universality of directory services
and information
Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 states in its article 6 that "the directory of all subscribers who have not expressed any objection to be listed, including fixed, mobile and personal numbers, shall be made available to users in a form approved by the national regulatory authority, whether printed or electronic or both, and regularly updated".
Order No. 2001-670 of 25 July 2001 on adaptation to community law of the intellectual property code and the postal code and telecommunications, which transposes in particular Directive 98/10/EC of 26 February 1998 on the application of the provision of an open network (ONP) to voice telephony and the establishment of a universal telecommunications service in a competitive environment specified that "through a universal directory, presented in the form of It may have access, on the same basis, to the e-mail addresses of subscribers who wish. »
The draft decree states that the operators communicate the lists of subscribers under the conditions determined by this text "to edit a universal directory or to provide a universal service of information at the national or departmental level" (Article R. 10-4). Furthermore, section L. 33-4 provides that the lists provided include "all subscribers or users".
It appears to the Authority that certain categories of directories may be excluded from the benefit of the terms of assignment provided for in this draft decree, namely the local non-departmental directories that constitute a segment of the market of directories where some competition has developed to date.
Some directories, especially those published in paper format, concerning infra-departmental areas or areas covering several departments, for example, when they constitute a single employment basin or a single barge area. The question is, therefore, whether the publishers of these directories may have access to the lists of subscribers of the operators under the conditions provided for in this draft decree.
It should be noted that section L. 33-4 of the code as amended by Order No. 2001-670 of 25 July 2001 states that "any application to edit a universal directory or to provide a universal service of information even limited to a specified geographic area".
For this reason, the Autorité considers that in this draft decree the drafting of paragraph 1 of Article R. 10-4 is not only restrictive in relation to the drafting adopted by Order No. 2001-670 of 25 July 2001, but that it may also be considered non-compliant with that text; The Autorité is therefore of the opinion that the use of the terms "at the national level or a specific geographic area" instead of "at the national or departmental level" would remove any ambiguity on this issue. The other provisions of this draft should be amended to refer to the Department.
3. Absence of mechanisms enabling another operator
that France Télécom be compensated for under the universal service
The obligation of universality on directory publishers or intelligence service providers could lead to a unbalanced situation between France Télécom and other service providers, in the context of the general system that governs the obligations under universal service.
Unlike the mechanism used for the provision of social tariffs, the provisions of the code derived from the amendments introduced by Order No. 2001-670 of 25 July 2001 do not provide for a system of "pay or play" with respect to the obligation of a universal directory.
Thus, an operator who would like to edit a universal directory could not be compensated, while France Télécom could obtain such compensation if necessary. In addition, with respect to directory and universal information service providers, other companies that telecommunications operators are likely to intervene in this market.
To ensure consistency with social tariff provisions, the Autorité would like to see the introduction of the "pay or play" system with respect to the services of directory services and universal information.
4. The provision by the operators of the lists
for direct prospecting
The Authority questions the device relating to the use and dissemination of the personal data of subscribers opposing their marketing for commercial prospecting purposes.
The conditions for such use and dissemination are mentioned in three separate articles of the new regulatory body:
- Article L. 33-4-1 of the Posts and Telecommunications Code of the above-mentioned order provides that these data are made "at the disposal of any person who makes the request";
- Article R. 10-1 prohibits, under criminal control, "the use by anyone (...) in direct prospecting operations, of personal data contained in subscribers' lists to the telephone service to the public and relating to subscribers who have expressed their opposition to this use irrespective of the mode of access to such data, including by simple consultation of the directory";
- Article R. 10-7, which determines the mentions to be included in the universal directories, requires that "the data relating to each subscriber (should) supplemented by means allowing the identification of any restrictions that may be requested affecting their use in direct prospecting operations (...)".
The general and absolute prohibition under criminal control of the use of data from persons who oppose commercial prospecting, which is the result of articles L. 33-4-1 and R. 10-1 of the Post and Telecommunications Code, has the effect of making operators' files the only regulatory "source files" by which direct prospecting companies are able to comply with their obligations, even though these companies can obtain files from other suppliers.
A decision of the Court of Cassation (No. 2030 FS-P) of December 2001 on the terms of access to the "orange list" of France Télécom (list of persons who oppose the marketing of the data concerning them for commercial prospecting purposes) confirms that "the orange list cannot, by nature, be divulged, France Télécom could only propose lists of subscribers who have been registered with those
This decision of the Court of Cassation having scope only for France Télécom and only until the entry into force of the new regulations relating to directory services and universal information, it would seem opportune to the Authority that, on the occasion of this decree, the Government can determine precisely the conditions under which such data can be made available to the companies concerned by the whole of the operators in order to put an end to the future
However, the joint reading of these three articles does not clearly reflect the conditions under which commercial prospecting companies will be able to establish lists respecting the will of those who do not wish to be subjected to direct prospecting operations:
- Article R. 10-7, which provides for the marking in the directories of the persons opposed to the commercial demarcation, could be interpreted as an incentive to download the lists published by the directory publishers, whose companies themselves expurged the subscribers opposed to the commercial demarcation;
- the prohibition of any use of this data, even by consultation with the directory, which appears in article R. 10-1, could, a contrario, be construed as prohibiting the use at the end of "expurger" the lists that commercial prospecting companies would have obtained from other sources than telecommunications operators; such seems to be the interpretation made by the Court of Cassation of the present article R. 10-1 of the code, from Decree No. 94-373 of 6 May 1994, very close to the new article R. 10-1;
- Article L. 33-4-1, on the other hand, seems to require operators to provide, under unspecified conditions, the list of persons opposed to direct prospecting operations.
The authority would therefore like the Government to clarify the device envisaged by the Post and Telecommunications Code.
5. Tariffs for the supply of subscriber lists by operators
for purposes of directory and universal information services
The Autorité observes that:
- the calculation of the cost of the "yearly" component of the universal service provided for in section R. 20-36 (1) excludes common costs;
- most European regulatory bodies have chosen to assess the costs of assigning lists for universal directory purposes on the basis of incremental costs incurred.
Under these conditions, the Authority considers that there would be no need to take into account the common costs in calculating the costs of providing subscriber lists. If, however, such a reference should be retained, then only the indivisible costs should be considered, i.e. those that cannot be allocated to a particular activity. This is how the common costs are understood in the context of interconnection, particularly in section D. 99-12 of the Post and Telecommunications Code.
With respect to this analysis, the reference to "especially consolidation and list management costs" is not required in section R. 10-6.
In addition, it seems desirable to the AMF that a reference is made to the principle of efficiency and international comparison, in order to offer at a lower cost to the community the services of directory and universal information and to facilitate the convergence of the conditions of assignment of lists at the European level.
Accordingly, the Autorité proposes to add an additional principle to those provided for in Article R. 10-6: "The costs taken into account are those of an efficient operator, especially with regard to international references. »
In general, the Autorité recommends that this Order in Council permit a flexible application of the device to take into account developments in the use and technologies associated with these services, including the transition from a consultation of the directory traditionally in print or telematic format to a consultation on other media such as the internet or mobile phones.
Beyond these observations, the Autorité considers that it would be necessary to make certain amendments, mainly editorial, to this draft decree in order to ensure consistency with the recently adopted legislative or regulatory texts. These requests for amendments are contained in annex 1 to this notice. Annex 2 also contains proposals to amend the Authority in relation to the draft decree that was transmitted to it.
For the benefit of these observations, the Autorité has issued a favourable opinion on this draft decree.
1. Need for consistency with texts
Published in the Official Journal
The Authority noted a lack of consistency, mainly editorial in nature, between the text of this draft decree and certain recently adopted legislative or regulatory texts. It seems to the Authority that it is necessary to standardize the drafting of these texts in order to guarantee a better readability.
1.1. Coherence with Decree No. 2002-36 of 8 January 2002 on certain standard terms of the terms of reference annexed to the authorizations granted under Article L. 33-1 of the Post and Telecommunications Code and published in the Official Gazette of 10 January 2002
Article R. 10
The third paragraph of section R. 10 states that any natural or legal person may freely ask [his] operator or [his] distributor "that these lists do not include the full address of his or her home, or if any, of reference to his or her sex"; it could be replaced by the more precise wording of the above-mentioned Decree No. 2002-36: "to oppose the publication and communication of the complete address of his home free of charge, as the published or communicable data allow to distinguish this person from his or her homonyms, as well as to oppose, where appropriate, the indication of sex".
Article 2
The Authority draws the attention of the Government to the fact that this draft decree repeals the first eight paragraphs of 2 of Article D. 98-1 of the Post and Telecommunications Code while this article has been amended by Decree No. 2002-36 of 8 January 2002. The Authority questions the merits of this repeal.
Article 4
Decree No. 2002-36 of 8 January 2002 provides that operators shall have a period of three months to inform their subscribers of the existence of the processing of the data concerning them. The subscriber then has a period of three months to oppose this data processing. The six-month period proposed by this draft should be coincided with the provisions previously cited.
1.2. Consistency with the legislative provisions of the Code as amended by Order No. 2001-670 of 25 July 2001 on adaptation to Community law of the Code of Intellectual Property and Post Code and Telecommunications
Article R. 10-4
The first paragraph of the article states that "the operators shall communicate the lists upon presentation of a reasonable request to edit a universal directory or to provide a universal information service at the national or departmental level"; the designation of "departmental" does not appear in article L. 33-4 of the code. It is therefore necessary to replace "departmental" with "even limited to a specific geographic area" (see paragraph 2 of this notice).
The drafting of the second subparagraph is complex. The drafting could be usefully aligned with the text contained in Article L. 35-4 of the Code: "The subscriber lists, presented in print and electronic form, contain, subject to the protection of the rights of persons, the following information: names and/or social reasons, addresses and telephone numbers of all subscribers to open networks to the public, and the mention of the profession of those who wish to do so. Operators may, at the request of the subscriber, insert their e-mail address in their list." The first name should be added.
Finally, the Authority considers it necessary to explicitly mention the terms and conditions of assignment of their list by the operators, by adding to the first paragraph of Article R. 10-4 after: "addresser" the following phrase: "with non-discriminatory conditions and a tariff reflecting the costs of the rendered service" to which the operators are held under Article L. 33-4 of the Post and Telecommunications Code, as amended by Order No.
Article 3
In the first paragraph, the Autorité considers it desirable to recall the form of the universal directory, in the same terms as those used in article L. 35-4 of the code: "France Télécom publishes a universal directory in printed and electronic forms..."
2. Formal remarks
The Autorité also noted in the current text some inaccuracies that should be corrected.
Article R. 10
It may be appropriate to specify the term "direct prospecting" by resuming the terms of Decree No. 2002-36 of January 8, 2002 "by mail or telecommunication (by call automations or fax machines)".
Article R. 10-3
The expression "in due time" seems vague; the deadline should be set. In addition, is this time limit the same as that mentioned in R. 10-4, which must not exceed "two working days"?
Article R. 10-4
It would seem desirable to move the end of the second paragraph of Article R. 10-4 ("data are accompanied by means to identify the oppositions referred to in the second, third, fourth and fifth paragraphs of Article R. 10") to Article R. 10-1: in fact, this sentence preserves the rights of subscribers and users, in particular those who have expressed their opposition to the use of personal data. The omission of such marking would make it illusory to preserve subscribers' rights.
A N N E X E 2
Text transmitted for advice to the Authority
(Deletion proposals are in italics)
Universal Directory Order
and amending the Post and Telecommunications Code
Text resulting from the opinion of the Authority
(Additional proposals are in italics)
Order on Universal Directory and Information Services and amending the Post and Telecommunications Code
Article 1
(...)
Article 1
(...)
Article R. 10
Third paragraph: "that these lists do not include the full address of their domicile, or, where appropriate, of reference to their sex; "
(...)
Article R. 10
Third paragraph: "that these lists do not include the full address of their domicile, to the extent that the published or communicable data makes it possible to distinguish this person from their homonyms, or, where appropriate, from their sex; "
Fourth paragraph: "that the personal data concerning it from the subscriber or user lists shall not be used in direct prospecting operations either by mail or by telecommunication, without prejudice to the provisions of Article L. 33-4-1, with the exception of the operations concerning the provision of telephone service to the public and related to the contractual relationship between the operator and the subscriber. »
Fourth paragraph: "that the personal data concerning it from the subscriber or user lists shall not be used in direct prospecting operations either by mail or by telecommunication, by call automation or fax, without prejudice to the provisions of Article L. 33-4-1, with the exception of operations concerning the provision of telephone service to the public and related to the contractual relationship between the operator and the subscriber. »
Article R. 10-1
(...)
Article R. 10-1
"The data are accompanied by means to identify the oppositions mentioned in the second, third, fourth and fifth paragraphs of Article R. 10. »
Article R. 10-4
Operators shall communicate the lists of subscribers provided for in the third paragraph of Article L. 33-4 on the presentation of a reasonable request to publish a universal directory or to provide a universal directory of information at the national or departmental level to the recipient (...)
Article R. 10-4
"The operators shall communicate the lists of subscribers provided for in the third paragraph of Article L. 33-4 on the presentation of a reasonable request to edit a universal directory or to provide a universal directory of information at the national or geographic level determined to the consignee on non-discriminatory terms and at a rate reflecting costs (...)
"The lists of subscribers mentioned in the preceding paragraph contain the data necessary to identify a particular subscriber and to prevent confusion between different subscribers, which are: names and/or social reasons or social names, first names, addresses and telephone numbers of subscribers to the telephone service to the public, as well as the mention of their profession for those who wish to do so. Operators may, at the request of the subscriber, insert their e-mail address in their list. Fixed telephone subscribers may request the insertion of data relating to other users of the line concerned, subject to their agreement, in the lists. Any user may also request the benefit of the provisions of the third paragraph of Article R. 10 with respect to the absence of a reference to his or her sex. The data are accompanied by means to identify the oppositions mentioned in the second, third, fourth and fifth paragraphs of Article R. 10. »
(...)
"The lists of subscribers, presented in print and electronic form, shall contain, subject to the protection of the rights of persons, the following information: names, names and/or social reasons, addresses and telephone numbers of all subscribers to open networks to the public, and the mention of the profession of those who wish to do so. Operators may, at the request of the subscriber, insert their e-mail address in their list. Fixed telephone subscribers may request the insertion of data relating to other users of the line concerned, subject to their agreement, in the lists.
"Registration supplies made under the third paragraph of Article L. 33-4 are obligatory to include a list of subscribers either at the national level or at the departmental level, and subject to the provisions of the preceding paragraph. »
"Registration supplies made under the third paragraph of section L. 33-4 are obligatory to cover the entire list of subscribers either at the national level or at the level of a specified geographic area, and subject to the provisions of the preceding paragraph. »
"The use of the lists obtained under the third paragraph of Article L. 33-4 is prohibited for purposes other than the provision of universal phone records or universal telephone services at the national or departmental level. »
"The use of the lists obtained under the third paragraph of Article L. 33-4 is prohibited for purposes other than the provision of universal phone records or universal telephone services at the national or geographical level. »
Article R. 10-6
"The provision of subscribers' lists in the third paragraph of Article L. 33-4 shall result in compensation to the operators concerned on the basis of a tariff that reflects the costs.
The rates are based on the following principles:
1. The costs taken into account must be relevant, i.e., related to the supply activity of the subscriber lists directly or indirectly.
2. The costs specific to the provision of subscriber lists, including the transmission costs of the lists, are entirely allocated to the provision of subscriber lists.
3. The costs specific to other operator activities are excluded from the cost of providing subscriber lists.
4. The costs that are common to both the provision of subscriber lists and other operator activities, including the costs of entering, consolidating and managing lists, are shared fairly between the activities involved.
5. Rates include normal pay for capital used.
Article R. 10-6
"The provision of subscribers' lists in the third paragraph of Article L. 33-4 shall result in compensation to the operators concerned on the basis of a tariff that reflects the costs.
The rates are based on the following principles:
1. The costs taken into account must be relevant, i.e., related to the supply activity of the subscriber lists directly or indirectly.
2. The costs specific to the provision of subscriber lists, including the transmission costs of the lists, are entirely allocated to the provision of subscriber lists.
3. The costs specific to other operator activities are excluded from the cost of providing subscriber lists.
4. The costs that are common to both the provision of subscriber lists and other operator activities are shared equitably between the activities involved.
5. Rates include normal pay for capital used. »
6. The costs taken into account are those of an efficient operator, especially with regard to international references.
Article 2
"I. - Section D. 98-1 of the Post and Telecommunications Code is repealed k. (...)."
Article 2
"I. - In section D. 98-1 of the Post and Telecommunications Code, are repealed: the first eight paragraphs of 2 of c, k. (...)."
Article 3
"Article 5 of the terms of reference annexed to above-mentioned Decree No. 96-1225 of 27 December 1996 is thus written: "Article 5 universal directories and universal intelligence service.
"France Télécom publishes a universal directory and provides a universal information service under the conditions set out in articles L. 35-4, R. 10-7 and R. 10-8 of the Post and Telecommunications Code. »
Article 3
"Article 5 of the terms of reference annexed to above-mentioned Decree No. 96-1225 of 27 December 1996 is thus written: "Article 5 universal directory and universal intelligence service.
"France Télécom publishes a universal directory in print and electronic form and provides a universal information service under the conditions set out in articles L. 35-4, R. 10-7 and R. 10-8 of the Post and Telecommunications Code. »
