Key Benefits:
The Autorité de régulation des communications électronique et des postes,
Having regard to Directive 2002/22/EC of the European Parliament and the Council of 7 March 2002 on universal service and user rights in relation to electronic communications networks and services (the "universal service" directive);
Having regard to European Commission decision 2007/176/EC of 11 December 2006 on the List of Standards and/or Specifications for Electronic Communications Networks, Electronic Communications Services and Related Resources and Services;
Considering the post and electronic communications code, including articles L. 35 to L. 35-8, L. 36-5, L. 36-7, R. 10-8, R. 20-30-1 to R. 20-30-12, and R. 20-33 to R. 20-40;
Vu la Act No. 2008-3 of 3 January 2008 for the development of competition for consumers;
Considering the request for advice from the Minister of Economy, Industry and Employment of April 3, 2008;
After deliberating on 22 April 2008,
I. ― Context
La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La Act No. 2003-1365 of 31 December 2003 with respect to the obligations of the public service of telecommunications and France Télécom is, with regard to the universal service, the transfer of the above-mentioned "universal service" directive.
It maintains the structure of the public telecommunications service established in 1996, which distinguishes three components of the public service: the universal service, the mandatory services and the missions of general interest in defence, security, research and higher education.
The universal service, defined by the "Universal Service" directive, includes four components: the provision of quality fixed telephone service at an affordable price, the provision of an information service and annuary, access to telephone booths and special measures for the disabled.
The Act also introduced a new mechanism, the call for applications, whereby the Minister for Telecommunications designates the provider operator for each component of the universal service.
Article L. 35-2 of the Post and Electronic Communications Code provides that: "Can be loaded to provide one of the components of the universal service mentioned in 1°, 2° and 3° of Article L. 35-1 by accepting the supply to the entire national territory and capable of ensuring it.
The Minister responsible for electronic communications shall designate the operators responsible for providing the components of the universal service through applications for technical and tariff conditions and, where appropriate, the net cost of providing such benefits.
In the event that a call for applications is unsuccessful, the Minister for Electronic Communications designates an operator capable of performing the service in question throughout the national territory (...)".
La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La Act No. 2008-3 of 3 January 2008 amended articles L. 35-2 and L. 35-3 of the Post and Electronic Communications Code. The amendments are intended to introduce some flexibility in the designation of universal service providers. They introduce the possibility to designate several operators as providers of the same component, thus opening the universal service delivery to operators at the subnational geographic level and not only national.
Article L. 35-2 of the Code of Posts and Electronic Communications in its new version states that: "In order to ensure the provision of universal service throughout the national territory in accordance with the principles recalled by Article L. 35 and the provisions of Article L. 35-1, the Minister responsible for electronic communications may designate, for each component of the universal service referred to in 1° and 3° of Article L. 35-1 or the elements of the same article
The designation shall be made following applications for technical and financial conditions and, where appropriate, the net cost of providing such benefits.
In the event that a call for applications is unsuccessful, the Minister responsible for electronic communications shall designate one or more operators to ensure the delivery in question throughout the national territory."
The decree submitted for advice to the Authority shall specify this new device in accordance with articles L. 35-1 to L. 35-3 of the postal and electronic communications code.
II. - On the amendment provisions
of the universal service
The Authority notes that the draft decree amends articles R. 10-8, R. 20-30 to R. 20-30-5 and R. 20-30-7 to R. 20-30-12 as well as articles R. 20-33, R. 20-35 to R. 20-37 and R. 20-40.
As the market situation has evolved, it is now possible in 2009 to open the various components of the universal competitive service by, inter alia, allowing alternative operators present in subnational zones to apply to these zones for the designation of universal service operators.
To this end, the draft decree amends the above-mentioned articles as follows:
– the terms: "the loaded operator" or "the loaded operators" are replaced by: "any loaded operator" (articles 2, 4, 6 and 8);
– the terms: "one of the components of universal service" or "one or more of the components of universal service" are replaced by: "universal service" (articles 1, 5, and 7);
― the expression "of the operator that is loaded with it" is replaced by: "any operator charged" or "any operator charged" (articles 8, 9 and 15);
the term "designated operator" is replaced by: "any designated operator" (section 10);
― the terms: "the universal service operator" are replaced by: "every universal service operator" (Article 12);
― the terms "provided by the operator" are replaced by: "provided by an operator" (Article 13);
― the expression: "the provision of the universal service component" is replaced by: "the provision of universal service" (Article 9).
The Autorité takes note of these changes in the regulatory part of the Post and Electronic Communications Code that allow the regulatory framework to be adapted to the new terms and conditions of applications to designate the provider(s) of the universal service from the Act No. 2008-3 of 3 January 2008.
The Autorité proposes, however, to complete certain articles of the regulatory part of the Post and Electronic Communications Code, in order not to leave room for any inaccuracies regarding the obligation of the operator(s) in charge of the universal service to provide this service to all users. As such, it should be noted that this obligation applies to the operator only for the geographic area for which it was designated.
On Article 9 of the draft decree
Article 9 of the draft decree amends the drafting of Article R. 20-30-12 of the Post and Electronic Communications Code. Section R. 20-30-12 of the above-mentioned Code states in its current version that: "The Minister for Electronic Communications shall call for applications to provide each of the components of the universal service (...)". The proposed amendment leads to making this appeal optional. The Minister may call for applications, in the light of the state of competition and in order to guarantee universal service.
This amendment opens the possibility of not appointing an operator in charge of the component or component element in the event that the market conditions in themselves provide universal service under satisfactory conditions.
The Autorité welcomes this amendment. However, the Commission considers that the proposed wording is ambiguous and proposes an alternative wording in the annex.
III. ― On provisions relating to the change in interest rate applied to operators in the event of a deferred payment of contribution to the universal service fund
Section 14 of the draft decree amends section R. 20-42 of the Post and Electronic Communications Code on the management of the specific account created to ensure the accounting and financial management of the universal service fund.
To date, the Caisse des dépôts et consignation en charge de la gestion financière et comptabilité du fonds invoices operators of interest calculated at the Euribor rate 12 months of the due date on the outstanding amounts on the due day. However, the weakness of this rate has enabled some operators to defer payment of their universal service claims.
In order to avoid such a practice, the Minister proposes to replace the current rate with a new rate that would be the Euribor rate increased by 4 points.
The Autorité takes note of this amendment proposal.
IV. ― On the elimination of the annual setting of the amount
of tariff reduction
Article 11 of the draft decree amends the third paragraph of Article R. 20-34 of the Post and Electronic Communications Code.
The current drafting of section R. 20-34 of the Post and Electronic Communications Code states that the Minister shall, for the following year, fix the monthly amount of the tariff reduction granted after notice of the Authority, to be fixed on 1 November of each year.
The amount of the rate social reduction that has not varied since the beginning of the current designation period (2003 to 2009), the draft decree proposes to abolish the systematic annual order and to provide for an order only in the event of a change in the amount of the rate social reduction.
The Autorité welcomes this amendment proposal.
V. ― On the modification of the Universal Yearbook component
Article 3 of the draft decree proposes a new drafting of Article R. 20-30-2 of the Post and Electronic Communications Code.
This amendment separates the activity of a universal directory editor from that of an information service provider.
It will distinguish the market from the universal directory edition from that of the provision of telephone information. This distinction is particularly necessary in a context where one of these markets could be considered competitive. Indeed, as demonstrated by the study on the process of liberalization of telephone information services conducted by ARCEP at the request of the presidents of the Finance Committee and the Economic Affairs Committee of the National Assembly (September 20, 2007), offers of information services at a lower or equal rate per call to that of the universal service offer ("18 711") are available since the liberalization of the intelligence services market. It should be recalled that the proposed amendment to section R. 20-30-12 of the Post and Electronic Communications Code provides the Minister with the ability to initiate or not initiate applications to designate a provider of a component or component of the universal service.
Thus, the distinction of universal directory publishing activities and the provision of universal telephone information service will allow for a designation procedure for the provision of one of these elements, provided that it is provided satisfactorily by the market.
The Autorité supports this amendment.
However, the Autorité wishes to emphasize that this amendment will result in difficulties in the application of Article R. 20-30-4 (2°) of the Post and Electronic Communications Code. In fact, under this article: "Any operator who, pursuant to Article L. 35-2, is responsible for providing the universal service component referred to in Article 2 L. 35-1 provides subscribers who are unable to consult the universal directory because of their visual impairment free access to the universal information service. »
The separation of "universal directory" and "information service" elements within the component mentioned in 2° of section L. 35-1 may lead to the designation of separate operators to provide these two elements, or even to the absence of an operator's designation for the "intelevision service".
For example, the requirement to provide free access to information services to persons with visual impairments may not affect the operator(s) responsible for providing the component referred to in 2° of Article L. 35-1 of the Post and Electronic Communications Code, which is split into two elements. The Autorité therefore proposes to amend the drafting of Article R. 20-30-4 (2°), in order to impose the obligation concerned only on the operator(s) responsible to ensure the "resource of information" of the component of the universal service provided for in 2° of Article L. 35-1 of the Code of Posts and Electronic Communications.
However, the Authority wishes to emphasize that, in the case that no operator would be designated by the Minister to provide the "information service", the obligation to ensure free access to the universal information service, for persons with visual impairments may not be imposed on any operator, as it is a universal service obligation. Therefore, this benefit would disappear. It would therefore be desirable for the Minister to reserve the opportunity to maintain free access to the universal information service for subscribers who are unable to consult the universal directory because of their visual impairment.
VI. ― Proposals of the Authority
On the
Article R. 20-30 of the Post and Electronic Communications Code
Section R. 20-30 of the above-mentioned Code provides for the possibility for operators responsible for ensuring a universal service delivery to delegate this benefit to a third party: "An operator may, after agreement of the Minister for Electronic Communications, entrust the supply or marketing of a part of the universal service or mandatory services to one or more other companies. It concludes with them conventions that guarantee the maintenance of the obligations defined by this Code and its terms of reference. The operator remains solely responsible for the fulfilment of these obligations. »
In the interests of good administration, the Authority would like to be informed of the existence of these conventions and, upon request, be able to communicate them.
On the
Article R. 20-34 of the Post and Electronic Communications Code
The Autorité also proposes to change the deadlines for the filing of an application under article R. 20-34 of the Post and Electronic Communications Code (provision of social tariffs).
The Code of Posts and Electronic Communications in its current drafting provides that the Minister shall take a decision within two months of receipt of the application submitted by an operator, after notice by the Authority. If the Authority does not have an opinion in the month following the receipt of the application, it is deemed positive.
The above deadline is very short, especially in cases where additional documents or information are required.
Accordingly, the Authority proposes to amend section R. 20-34 of the Post and Electronic Communications Code, so as to establish a system similar to that provided for in section D. 406-15 of the same code, allowing the Authority to make a request for additional information and to trigger the period provided for in section R. 20-34 only from the date of receipt of an application considered complete.
On the
Article R. 20-30-7 of the Post and Electronic Communications Code
The Authority wishes to propose an update of article R. 20-30-7 of the Post and Electronic Communications Code.
The above article states in its version resulting from the draft decree that: "The operators responsible, pursuant to Article L. 35-2, to provide the universal service comply with the quality of service obligations defined by their terms of reference. These operators publish, under the conditions set out in their specifications, the values of the service quality indicators set out in their specifications. These indicators include those contained in Annex III of Directive 2002/22/EC of the European Parliament and the Council of 7 March 2002 on universal service and user rights in relation to electronic communications networks and services (the "universal service" directive).
It would be appropriate to take into account the recent change in service quality indicators and to replace accordingly the reference to Appendix III of the Universal Service Directive with a reference to the European Commission's decision 2007/176/EC of 11 December 2006 on the List of Standards and/or Specifications for Electronic Communications Networks, Electronic Communications Services and Related Resources and Services.
Subject to the editorial amendments made in the annex, the Autorité issues a favourable opinion on the draft decree.
This notice and attached editorial proposals will be forwarded to the Minister of Economy, Industry and Employment and published in the Official Journal of the French Republic.
Done in Paris, April 22, 2008.
| TRANSMITTED TEXT FOR AUTHORITY (Deletion projects are in italics) | TEXT RESULTING THE ADVIS OF AUTHORITY (Additional proposals are in italics) |
| Article 1 of the draft decree on the universal service of electronic communications (draft article R. 20-30 of the Post and Electronic Communications Code) | |
| Any operator who is responsible for providing the universal service, pursuant to Article L. 35-2, or a mandatory service, pursuant to Article L. 35-5, shall ensure the availability of this service for all users. | Any operator who is responsible for providing the universal service, pursuant to Article L. 35-2, or a mandatory service, pursuant to Article L. 35-5, shall ensure that this service is available to all users at all times. of the geographical area for which it was designated. |
| Article 2 of the draft decree on the universal service of electronic communications (draft article R. 20-30 of the Post and Electronic Communications Code) | |
| Any operator who, pursuant to Article L. 35-2, is responsible for providing the component of the universal service referred to in Article L. 35-1 shall provide to any person within the scope defined in Article R. 20-30 who so requests. | Any operator, pursuant to Article L. 35-2, to provide the component of the universal service referred to in Article L. 35-1, shall provide to any person within the scope defined in Article R. 20-30, upon request, in the geographical area for which it was designated. |
| Article 6 of the draft decree on the universal service of electronic communications (draft article R. 20-30-9 of the Post and Electronic Communications Code) | |
| Any operator charged, pursuant to Article L. 35-2, to provide the components of the universal service referred to in 1° and 2° of Article L. 35-1 shall not alter the material conditions for the use of one of the universal service services only after the information of the users and organizations of the user concerned and the collection of their possible comments. | Any operator charged, pursuant to Article L. 35-2, to provide the components of the universal service referred to in 1° and 2° of Article L. 35-1 shall not may modify the material conditions for the use of one of the universal service benefits only after the information of the users and the organizations of the user concerned and the collection of their possible comments. |
| Article 9 of the draft decree on the universal service of electronic communications (draft article R. 20-30-12 of the Post and Electronic Communications Code) | |
| In order to guarantee the universal service and, in particular, given the state of competition in the markets considered, the Minister responsible for electronic communications may call for applications for the provision of each of the components of the universal service referred to in 1° and 3° of section L. 35-1 or elements of that described in 2° of the same section. | The provision of each of the components of the universal service referred to in 1° 2 and 3° of section L. 35-1 is subject to a call for applications by the Minister responsible for electronic communications, where, in the light of the state of competition in the market, the Minister decides to designate one or more providers. The provision of each of the elements of the component described in 2° of the same section may be subject to a call for applications issued by the Minister responsible for electronic communications in the light of the state of competition in the market. |
| Article R. 20-30 of the Post and Electronic Communications Code | |
| An operator may, after agreement of the Minister responsible for electronic communications, entrust the supply or marketing of part of the universal service or mandatory services to one or more other companies. It concludes with them conventions that guarantee the maintenance of the obligations defined by this Code and its terms of reference. The operator remains solely responsible for the fulfilment of these obligations. | An operator may entrust, after agreement of the Minister for Electronic Communications and information of the Autorité de régulation des communications électronique et des postes providing or marketing part of the universal service or mandatory services to one or more other companies. It concludes with them conventions that guarantee the maintenance of the obligations defined by this Code and its terms of reference. It communicates these conventions, upon request, to the Minister responsible for electronic communications and to the Authority for the regulation of electronic communications and posts. The operator remains solely responsible for the fulfilment of these obligations. |
| Article R. 20-34 of the Post and Electronic Communications Code | |
| Operators who wish to offer their customers the opportunity to benefit from the tariff conditions set out in I shall forward their application simultaneously to the Minister responsible for electronic communications and the Authority for the regulation of electronic communications and posts. The Minister shall take a decision within two months of the receipt of the application, following the advice of the Electronic Communications and Post Regulatory Authority. If the Electronic Communications and Posts Regulatory Authority does not take action within one month of receipt of the application, its notice is deemed positive. | Operators who wish to offer their customers the opportunity to benefit from the tariff conditions set out in I shall forward their application simultaneously to the Minister responsible for electronic communications and the Authority for the regulation of electronic communications and posts. The Minister shall take a decision within two months of the receipt of the application, following the advice of the Electronic Communications and Post Regulatory Authority. If the Electronic Communications and Posts Regulatory Authority does not take action within one month of receipt of the application, its notice is deemed positive. Within thirty working days from the receipt of the request for a specific tariff offer, the President of ARCEP informs, where appropriate, the applicant, by registered letter with a request for a notice of receipt, that his request is incomplete and invites him to provide additional documents. The deadline between receipt of the full application by ARCEP and notification of the decision to the applicant cannot exceed six weeks. |
The president,
P. Champsaur
