Key Benefits:
The Autorité de régulation des communications électronique et des postes,
Considering Directive No. 2002 / 19 / EC of the European Parliament and of the Council of 7 March 2002 on access to electronic communications networks and associated resources and their interconnection (Directive "access");
Considering Directive No. 2002 / 20 / EC of the European Parliament and of the Council of 7 March 2002 on the authorization of electronic communications networks and services (Directive "authorisation");
Considering Directive No. 2002 / 21 / EC of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (the "frame" directive);
Considering Directive No. 2002 / 22 / EC of the European Parliament and of the Council of 7 March 2002 concerning the universal service and user rights of electronic communications networks and services (the "universal service" directive);
Considering Recommendation C (2007) 5406 of the Commission of the European Communities of 17 December 2007 concerning the relevant markets of products and services in the electronic communications sector that may be subject to ex ante regulation in accordance with the "frame" directive (recommendation "relevant markets"), and its explanatory notice;
Given the Post and Electronic Communications Code, including its articles L. 32-1, L. 32-4, L. 37-1, D. 98-11 and D. 98-12 ;
Having regard to Decision No. 2006-0007 of the Authority of 12 January 2006 on the establishment of a questionnaire for the collection of information necessary for the monitoring of mobile markets;
Having regard to Decision No. 2006-1173 of the Authority dated 5 December 2006 on the questionnaire for the collection of information necessary for the monitoring of mobile markets;
After deliberating on 25 September 2008:
By virtue of its general information powers necessary for the exercise of its missions, and in particular the observation and monitoring of the markets, the Authority completes its quarterly collection of information with mobile operators in metropolis (network operators and virtual operators) and covering quantitative and qualitative elements related to their activity, for the purpose of monitoring the market, as resulting from decisions no. 2006-0007 dated 12 January 2006-11 and 2006.
I.-The applicable legal framework
The general power of information
Pursuant to Article L. 32-4 of the Post and Electronic Communications Code (CPCE), the Authority has a general authority for information to collect from individuals or legal entities operating telecommunications networks or providing telecommunications services the information or documents necessary to ensure that such persons are in compliance with the principles set out in sections L. 32-1 and 32-3 as well as their obligations under the CPCE.
Article L. 32-1 II provides that ARCEP shall ensure, inter alia:
« 2° Exercises for users of effective and fair competition between network operators and electronic communications service providers;
3° Development of employment, effective investment in infrastructure, innovation and competitiveness in the electronic communications sector;
4° The definition of conditions for access to open networks to the public and the interconnection of these networks that guarantee the possibility for all users to communicate freely and the equal conditions of competition;
[...]
10° The establishment and development of networks and services and the interoperability of services at the European level;
11° Effective use and management of radio frequencies and numbering resources."
Market analysis
Pursuant to Article L. 37-1 of the CCCB, the Authority shall determine the markets of the relevant electronic communications sector for the application of articles L. 38 to L. 38-2. It must then, after analyzing the predicted state and evolution of competition in these markets, establish a list of operators deemed to have significant influence on each of these markets. Finally, it is the responsibility of it to set the obligations applicable to these operators.
It is therefore appropriate that the Autorité has the necessary elements for the implementation of the provisions relating to market analysis. As a result, operators are required to provide the Authority with information on their operations and networking activities open to the public or the provision of electronic communications services to the public, necessary to quickly assess and analyze the situation of the markets concerned and their developments over time.
User information rules
In addition, pursuant to Article D. 98-12, operators of open-ended networks and electronic communications service providers to the public communicate to ARCEP, upon request, in addition to the information provided for in articles L. 111-1 and, where appropriate, L. 121-18 of the Consumer Codeinformation on:
“—“the general and contractual terms and conditions for the provision of the service provided in the context of its declaration, which state:
- the terms and conditions of renewal of contracts and, where applicable, any minimum contractual period;
- the conditions for service quality;
– the delivery times and types of maintenance services offered;
― in terms of telephone service to the public, the description of the services offered under the proposed contracts;
– rates of its offers, including tariff reduction formulas;
― the proposed compensation and reimbursement formulas and dispute resolution mechanisms. »
II.-The objectives pursued by the Authority
By its decision No. 2005-0321 of 14 June 2005, the Authority has put in place a questionnaire for the collection of information necessary for the application of Article L. 37-1 of the CPCE. This annual collection of quantitative information allows the Authority to keep up-to-date the data on which its market analyses can be based to observe developments and, where appropriate, be able to review the situation of the relevant markets if the observed developments warrant it.
With regard to the mobile market more specifically, a collection of specific information was established within the framework of the Mobile Observatory. Due to the regular and frequent developments in this market and its importance in the electronic communications sector, this collection, in almost real time, was made on an initial monthly basis and now quarterly.
In addition, the wholesale market for mobile access and call departure was the subject of a formal market analysis of the Authority. The analysis, which concluded that a remedy was imposed in the form of an obligation to access the metropolis and an obligation to roam deployment in the Caribbean-Guyane area, was suspended to take full measure of the impact of the recent appearance of virtual operators on the animation of the retail market in metropolis. Thus, the wholesale and retail markets for access and mobile call departure were monitored.
In addition, if it has withdrawn the wholesale market from the mobile access and start-up of the list contained in its recommendation on the relevant markets of 17 December 2007, the European Commission, in its explanatory notice, notes very strong national disparities in the state of competition in the mobile telephone markets (including examples of tacit agreements or collusion) and therefore invites the national development authorities.
Finally, new services are a major issue in terms of medium-term market animation, which justifies monitoring its development.
The above-developed elements warrant specific monitoring of mobile markets, on a quarterly basis, through a collection of information that feeds the restitution documents described in VI to this decision, through the questionnaire annexed to this decision. In this context, it is also necessary that operators systematically transmit the main developments of their offers in accordance with Article D. 98-12 of the CPCE.
The changes to the initial set of indicators, resulting from Decision No. 2006-0007 dated January 12, 2006, are intended to refine the knowledge of the competitive dynamics in the mobile telephony retail market.In this regard, the indicators introduced by this decision have the effect of distinguishing, in existing indicators, consumer behaviours that fall within the scope of competition from those arising from other factors. In addition, they reinforce, in a proportionate manner, certain previously collected indicators and allow for the consideration of recent market developments. As a result, the changes in this decision contribute to an increased efficiency of the market tracking tools previously in place.
III.- Companies involved in the monitoring of mobile markets
All mobile operators, whether they are companies operating or establishing an electronic communications network open to the public (network operators) or providing the public with an electronic communications service (virtual operators).
The operators concerned at the date of this decision are: Orange France, SFR, Bouygues Telecom, Transatel, Omer Telecom, NRJ mobile, Tele2, Auchan Télécom, Carrefour Mobile, Afone, Altitude Telecom, Numéricable, Mobisud and Coriolis Télécom.
IV.-The nature of the collected elements
The collection of updated information is formalized by a questionnaire annexed to this decision, which will be informed on a quarterly basis by the operators. The scope of the requested information takes into account the specificities of the territories considered as well as the nature of the actors (networkers or virtual operator), or even their dimension.
The information requested includes, where applicable, various customer segments, including the business customers and, in the general public, prepaid and postpaid customers.
In particular, they allow the Authority to appreciate:
- the market dimension, particularly in terms of a customer park, including at a regional or departmental level as appropriate, as well as its evolution, for example in terms of gross sales and migration;
- the fluidity of the market, especially in terms of portability, resiliation and customer engagement;
― the volume of activity (business figures, traffic volumes, etc.) and the commercial dimension (details and contractual conditions, distribution, etc.) of the market;
– price levels, beyond the facial prices of retail offers, according to a degree of detail allowing sufficient statistical comfort;
- the development of the wholesale market of access and the start of mobile calls, including from the perspective of MVNO contracts and their implementing documents, as well as in terms of volume of activity (business figures, traffic volumes, etc.);
– the development of new services and, more generally, technologies, including in terms of the deployment of network equipment.
This information is proportionate to the needs of the Authority in view of the objectives mentioned in II.
In addition, this decision may be amended as necessary, taking into account the development of wholesale and retail markets.
V.-La concertation entreprise
With regard to the changes made to the questionnaire by this decision, a consultation was conducted with operators between July 2007 and July 2008. This consultation included a first phase of sending proposals for amendments on July 27, 2007, the operators wishing it were received by the Authority at the end of October, a second round of proposals was sent for comments following these bilateral interviews. Subsequently, a formal proposal was sent for comments by mail dated 18 June 2008. In particular, the Autorité notes the lack of opposition or the favourable perception of a change by a majority of operators, coupled with a lack of technical obstacles to the implementation of the measure.
VI.-The processing and use of collected items
The information collected through the questionnaire annexed to this decision will be used as part of the objectives set out in II.
This information will be subject to controlled processing and dissemination within the Authority.
In particular, they will enable the development of in-house dashboards, particularly as part of the wholesale market analysis of access and mobile call departure. In accordance withArticle D. 295 of the CPCEa synthesis of these dashboards may also be communicated to the European Commission.
Finally, subject to the confidentiality of cases, they may, in particular, be used as part of the AMF publications.
Decides:
The mobile operators of the network operators and/or service providers concerned provide the response elements to the questionnaire annexed to this decision on a quarterly rate.
For the year 2008, the information is communicated to the Authority:
– no later than Friday, October 17, 2008 for third quarter data;
– no later than Friday, January 23, 2009 for fourth quarter data.
For future years, the information is generally communicated to the Authority three weeks after the end of each quarter for the following quarters.
The Director General of the Authority is responsible for the execution of this decision, which, with the exception of its annex, will be published in the Official Journal of the French Republic.
Done in Paris, September 25, 2008.
For the president, the member of the Authority
preside over the meeting:
E. Bridoux
