Opinion No. 2004-563 Of June 29, 2004 On The Draft Order To The Public Of Telecommunications Service Obligations And The Financing Of The Universal Service In Telecommunications

Original Language Title: Avis n° 2004-563 du 29 juin 2004 sur le projet de décret relatif aux obligations de service public des télécommunications et au financement du service universel des télécommunications

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JORF n ° 269 of November 19, 2004, text no. 46 notice No. 2004-563 of June 29, 2004 on the draft order to the public of telecommunications service obligations and the financing of the universal service of telecommunication NOR: ARTJ0400032V ELI: not available the authority of telecommunications regulation, given the directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and the rights of users with respect to networks and services of electronic communications (directive 'universal service');
See the code of posts and telecommunications, and in particular articles L. L. 35 35 - 8, L. 36 - 7, R. 10 - 8 and R. 20-31 r. 20-44;
See Act No. 2003 - 31 December 2003 1365 to France Telecom and the public of telecommunications service obligations, and in particular article 9;
Considering Decree No. 96 - 1225 of 27 December 1996 approving the specifications of France Telecom;
Given the request for an opinion to the Minister responsible for industry, dated June 9, 2004;
After in deliberating on June 29, 2004, i. - context law No. 2003 - 1365 of December 31, 2003 on the obligations of public telecommunications service and France Telecom is, for what is the universal service, the transposition of the directive 'universal service' above.
It maintains the structure of the public telecommunications service established in 1996, which distinguishes three components of the public service: universal service, mandatory services and missions of general interest defence, security, research and higher education.
The authority recalled that further obligations borne by the providers of universal service operators add obligations of a general nature akin to public service obligations affecting all the operators. Thus, on the occasion of the renewal of the licences of SFR and Orange France, and on the proposal of the Authority (cf.), the Minister has strengthened bonds of mobile operators, including accessibility to the service for the disabled, protection of the environment and site sharing radio, coverage of the white areas, of consumer protection through measures against theft of the terminals.
Universal service, whose definition is taken from directive 'universal service', includes four components: the provision of fixed telephone service quality at an affordable price, the supply of a service of information and a directory, access to telephone booths and specific measures for people with disabilities. This content is likely to evolve as early as 2005, the European Commission has an obligation under that directive, to review the scope of universal service before July 2005.
This law also introduced a new designation mechanism whereby the Minister responsible for telecommunications refers to the operator attribute following a call for applications for each component. Once designated, the operator in charge of one of the obligations of the universal service can be compensated by the Fund of USO of the net cost of its obligations, as these constitute an excessive burden.
The decree submitted for opinion to the authority clarifies this new device in accordance with articles L. 35 - 1 to L. 35 - 3 of the code of posts and telecommunications. It includes three categories of provisions: those relating to the definition of the components, those relating to the procedure of designation of the operators in charge of one of the components of the universal service and those relating to the methods for calculating the cost of the universal service and the contributions of each of the operators.
II. - On the provisions relating to the definition of the components of the universal service (article 2 of the draft decree) the Authority notes that draft article R. 20-30-1 includes an obligation for the operator in charge of the first component of the universal service, namely the provision of affordable quality telephone service, to provide free to subscribers of services of selective ban of outgoing calls as part of its proposed offers telephone service.
The Authority considers that the list provided for in this article could be modified to create a service to selective ban to appeal under the following segmentation:-interpersonal national calls to fixed networks. This category would include local, long distance and calls to non-geographical numbers of type 087BPQMCDN. These three types of appeals are relatively homogeneous in terms of use and pricing. Extra cost between local and long distance is disappearing and the tariff offers with these three types of call are common;
-interpersonal national calls to mobile networks. Given their specific nature and the higher price level, it seems legitimate to isolate calls to mobiles in stating that he is here only for national calls.
-international calls. These calls, whether fixed or mobile, networks may be grouped in a separate category, given their different nature and the great variability in their price;
-calls to service providers. All calls to service providers, or calls to special numbers, could be grouped into a single category, the border between shared revenue and shared-cost services becoming increasingly required and pricing of these communications is subject to no tariff reduction unlike interpersonal communications;
-paid calls. Finally, a global option to no appeal to non toll-free numbers could also be added. Such an option would be to block all calls, except calls to free 0800 type numbers and emergency services.
In the title of draft article R. 20-30-3, the obligations imposed on the operator in charge of the component 'payphone' have been changed. So, this operator should now implement a cabin by commune and a additional municipalities whose population is between 1,000 and 2 500 inhabitants. This relaxation allows to adapt the obligations of the component to the reality of the current uses of telecommunications.
The authority statement that draft article R. 20-30-4 specifies the measures that the operator designated for one of the components of the universal service must adopt in favour of the disabled.
The Authority considers that persons with disabilities should benefit from such measures on the part of all the operators, whether or not they are in charge of one of the universal service obligations, and would welcome a law establishing a general obligation. As such an obligation is of a general nature, should not give rise to compensation.
III. - the provisions on the methods for calculating the costs of universal service (art. 3-13 of the draft decree) on draft article R. 20-31: article 3 of the draft decree amends article R. 20-31 of the code of posts and telecommunications on costs of the universal service. The reference to article R. 20-34, relating to social tariffs, should be cited in the article r. a. 20-31 in what it concerns the component 'telephone service' and not to the b relative to components 2 and 3 of the universal service.
On draft article R. 20-33: the Authority welcomes the disappearance of the reference to unprofitable customers in the evaluation method of the cost corresponding to the geographical equalization bonds.
Such a reference is reconciles wrong with an assessment area and can also lead to paradoxical situations where compensation for serving an area turns out to be less expensive than some of its subscribers, which discredits the device and is a source of litigation.
In this respect, evaluations conducted by the authority in the case of France Telecom have required the development of complex models which, despite the care that can be provided for their implementation, are inherently questionable and fragile; Thus, while the final assessment based on audited data, the amount of this component has been 5.1 and 5.4 million euros (before taking into account intangible benefits) for the years 2000 and 2001, respectively, the estimated amount for 2002 amounted to EUR 56 million.
Moreover, the Authority notes that the report to the Prime Minister proposes to delete the mention that: "the investment costs are based on replacement costs calculated on the basis of the best commercially available technology."
The Authority agrees with this proposal, but considers desirable to maintain the reference to a principle of effectiveness. That's why the Authority proposes to replace the last sentence of the article R II. 20-33 by: "the costs taken into account are those of an efficient operator.
On draft article R. 20-37: section 8 of the draft decree amends article R. 20-37 to put in charge of the calculation of the rate of pay at the single authority.

The Authority considers that it would be desirable that the modalities for the calculation of this rate be also amended in order to take into account the specificity of the universal service; universal service activities indeed present a lower risk because the operator is compensated, regardless of the size of its deficit.
The authority therefore it is desirable that the Decree should take note of the specifics of the universal service through a general formula, such as the one proposed in the annex.
On draft article R. 20-37-1: Decree No. 2003-338 of April 10, 2003, which was introduced into the code the definition of benefits intangible, to France in accordance with the judgment of the Court of justice of the European communities on 6 December 2001, had taken over the benefits listed by the Commission in its communication COM (96) 608, dated November 27, 1996 on the evaluation criteria for national systems of calculation of the cost and financing of universal service in telecommunications and guidelines for the Member States with regard to the operation of such systems.
The Authority notes that article 9 of the draft decree amends article R. 20-37-1 of the code of posts and telecommunications in order to clarify that the list of four intangible benefits is more comprehensive and can therefore be enriched. The authority questioned the objective of this amendment, which is likely to open the door to new litigation. She wish therefore that the Decree avoids using the word 'including', or, as appropriate, expressly states the additional benefits to consider.
On draft article R. 20-39: draft article 11 amends article R. 20-39 of the code of posts and telecommunications. It contains the definition of the turnover to be taken into account, excluding one realized as the route, and the diffusion of radio or television, in accordance with article L. 35 - services 3, while also excluding those related to the operation of collective antennas.
The authority questioned the meaning of the notion of "collective antennas' and considers that it would be desirable that this term be clarified by decree to avoid any ambiguity.
In a concern for clarification, the Authority considers that it is necessary to specify that the "turnover" mentioned several times is always the same, namely the turnover as defined in the second and third paragraphs of this article.
In addition, the authority is favourable to the existence of a mechanism to simplify the management of the universal service Fund. It notes in this regard that the threshold for exemption, set at EUR 400 000, seems low. It could lead a small business (less than 2 employees on the basis of commonly observed ratios) to contribute by imposing disproportionate; loads of management that is why the Authority considers that an increase in the threshold to five million euros would lighten the load for the companies in the sector without harming a principle of fairness, in view of the high concentration of the sector.
There is, also in any State of cause, the regulatory text to remove any ambiguity as to the mechanism; the authority is in this favourable context, for practical reasons and fairness, that the device lead to successively:-first to isolate operations involved in the funding, given the exemption threshold.
-then to spread the burden of funding between these operators.
Finally, the Authority notes that the proposed scheme leads to effects of threshold. It would seem preferable to set up a franchise system, compatible with legislation, dividing the financing charges on the basis of the amount of the turnover threshold considered.
The authority could lead to an estimate of the effect of various changes described above: they increase of less than 1% contributions to the support of the largest contributors to the mechanism provided by the draft decree.
Moreover, the authority finds, in view of the report to the Prime Minister on this point, that, even in the absence of provision in the Decree on the assessment of the excessive burden imposed by article L. 35 - 3 of the code of posts and telecommunications, it will return him to carry out this assessment. In the interests of legal certainty, it seems preferable to specifically assign this competency to the authority.
Other articles of the draft decree do not call for particular comment of the authority. Subject to the above remarks and the drafting changes made in the annex, the Authority issues a favourable opinion on the draft decree.
This notice and the attached drafting proposals will be transmitted to the Minister delegated to industry and published in the Official Journal of the French Republic.
Done at Paris, on June 29, 2004.

Annex A N N E X E project of Decree on TELECOMMUNICATIONS PUBLIC SERVICE OBLIGATIONS and the financing of the SERVICE of universal complained you can consult the table in the JO No. 269 the number 46 president, P. Champsaur text 19/11/2004

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