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Opinion No. 2015 - 0503 May 5, 2015 On The Draft Decree Taken In Application Of Articles L 33 - 6 And L. 45 - 7 Of The Code Of Posts And Electronic Communications

Original Language Title: Avis n° 2015-0503 du 5 mai 2015 portant sur le projet de décret pris en application des articles L. 33-6 et L. 45-7 du code des postes et communications électroniques

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JORF no.0245 of 22 October 2015
text No. 71



Notice No. 2015-0503 of 5 May 2015 on the draft decree under articles L. 33-6 and L. 45-7 of the postal code and electronic communications

NOR: ARTJ1522355V ELI: Not available


The Autorité de régulation des communications électronique et des postes,
Vu le Post and electronic communications codeincluding articles L. 33-6 and L. 45 to L. 45-8 (hereinafter CPCE);
See?Order No. 2014-329 of 12 March 2014 relative to the digital economy;
Given the decision of the Authority No. 2009-1106 of 22 December 2009 specifying, pursuant to articles L. 34-8 and L. 34-8-3 of the CPCE, the terms and conditions of access to high-speed optical fibre electronic communications lines and the cases in which the pooling point may be within the limits of private ownership;
Considering the decision of the Authority No. 2010-1312 of 14 December 2010 specifying the terms and conditions of access to high-speed electronic communications lines in optical fibre throughout the territory with the exception of very dense areas;
In view of the letter dated 1 April 2015, by which the Secretary of State in charge of digital technology, has seized the Authority, for opinion, of a draft decree taken under the articles L. 33-6 and L. 45-7 the postal code and electronic communications;


After deliberating on 5 May 2015,
Form the following notice:
By letter dated 1 April 2015, the State Secretary for Digital Affairs, on the basis of Article L. 36-5 of the CPCE, submitted a request for advice on a draft decree, which follows the legislative amendments made to the CPCE by the CPCE.Order No. 2014-329 of 12 March 2014 on the digital economy. The draft text aims, on the one hand, to clarify the modalities for the deployment of high-speed fibre optic electronic communications lines in existing collective buildings and individual housing units and, on the other, to secure the missions of the registration offices of the first-level Internet domains.
I. - On the provisions of Article L. 33-6 of the CCCB
A. Context of the referral
Following in particular the work carried out by ARCEP (1),Order No. 2014-329 of 12 March 2014 concerning the digital economy has come to amend the provisions of Article L. 33-6 of the CPCE in order to remove the main difficulties of interpretation generated by this article. The draft decree submitted to the AMF's opinion therefore puts in coherence and complements the current provisions of Articles R. 9-2 to R. 9-4 of the CPCE relating to high-speed electronic communications lines in optical fibre in a building with the provisions of Article L. 33-6 of the CPCE.
First, the new provisions of Article L. 33-6 of the CCCB have introduced a significant extension of the scope of the rules set out in this section to individual housing sets (designated in the current language under the term "lots"), to take into account this type of habitat. Now referred to in Article L. 33-6 of the CPCE both sets subject toOrder No. 2004-632 of 1 July 2004 relating to trade union associations of owners only those subject to Act No. 65-557 of 10 July 1965 establishing the status of co-ownership of built buildings. The new provisions are further confirmed that Article L. 33-6 of the CCCB is applicable both to the built parts and to the unbuilt parts of the properties and that Article L.33-6 of the CCCB is not applicable in the case of individual buildings.
Secondly, the new provisions of Article L. 33-6 of the CPCE from theOrder No. 2014-329 of 12 March 2014 restrict the principle that the installation of the fibre is done at the expense of the operator of the building signatory to the convention provided for in this article.
On the one hand, the work that is obligatoryly borne by the building operator is now circumscribed to the only operations carried out in the common use parts. Thus, with respect to the work carried out in the private parts of a residential or local area for professional use to enable the connection of the building to the network deployed in the building, and therefore to the sole occupant of the housing or local for professional use, it is now possible for the operator, without it being obligatory, to charge the occupant all or part of the cost of the work.
On the other hand, and with regard to possible refusals on the part of an owner, Article L. 33-6 of the CPCE provides that the principle that the installation of the fibre is done at the expense of the signatory operator does not find to apply in case two consecutive proposals of fibration of the same operator were refused by the owner, the co-owners' union or the union association of owners two years ago.
Finally, section L. 33-6 of the amended CCCB clarified the issue of the realization and financing of new FttH-line reception facilities where the building does not include suitable infrastructure or that it is already fully occupied. Such work now comes to the owner, the co-owners' union or the owners' union association, who then makes them available to the signatory operator of the agreement before the work done by this operator begins. In practice, it is possible that the operator will take over all or certain costs related to these operations as well as all or part of their implementation. The building operator that is a signatory to the agreement must then carry out the installation of the optical fibre, from the effective provision of the reception infrastructure by the owner, within six months.
The draft decree is therefore part of the extension of the above-mentioned order that requires an update of the regulatory part of the CPCE to take into account the changes in the provisions of Article L. 33-6 of the CPCE that have just been submitted.
B. The changes made by the draft decree
1. Coherence of the regulatory part with homes referred to in Article L. 33-6 of the CCCB
The amendments to sections R. 9-2 to R. 9-4 of the CPCE aim to align the provisions of these articles with section L. 33-6 of the CPCE in its draftingOrder No. 2014-329, which now also applies to individual housing sets.
2. Provisions concerning the refusal of the owner of two consecutive offers
The draft decree submitted to the Authority determines the terms and conditions for the application of the provisions of Article L. 33-6 of the CPCE which provide that the building operator does not take charge of the operation of installation, management, maintenance and replacement of the high-speed electronic communications lines in fibre optics as soon as "the owner, the co-owner's union or the union association of owners has refused two consecutive offers of two years
As the Authority had noted in its opinion on the draft order (2), "[it] is likely that in practice, this provision will only rarely apply, especially since, even if a condominium refuses twice the fibration with free, the operator will generally have an interest in continuing to propose a deployment at its own expense to try to obtain a favorable decision of the co-ownership. However, this provision can strengthen the proprietor's incentive to quickly accept the build-up of their building and thus in certain situations, to accelerate the deployment of FttH networks."
The draft decree specifies the modalities of computation of deadlines. In particular, it sets out the starting point of the two-year period provided for in Article L. 33-6 of the CCCB as the date of notification of the refusal decision (by registered letter with notice of receipt or any other means attesting to the date of receipt of the refusal) of the owner, the co-owners' union or the trade union association of owners of a building or subdivision. It is also envisaged, with regard to situations in which the offer of the operator would be left unanswered, that the silence kept by the owner, the syndicate of condominiums or the union association of owners to which an operator made an offer results in the two-year period provided for in Article L. 33-6 of the CPCE. This period is short after a two-month period from the date of receipt of the offer or, where the decision to accept or refuse this offer of installation must be taken by the general assembly of the co-owners or the union association of the owners, from the date of the first general assembly following the delivery of the offer of the operator, subject to compliance with the deadlines necessary to its registration on the order of the day.
3. Provisions relating to hospitality infrastructure
As has been recalled, Article L. 33-6 of the CPCE now provides that when the infrastructure (gains, goulottes) in the building are insufficient to accommodate the fiber optic lines, it is in principle for the owners, the co-owners' union or the owners' union association to make them available to the operator - which, however, remains free to propose to the owners to take these work at its expense.
The draft decree sets out the modalities for the provision of these reception facilities.
In particular, three contradictory findings are now foreseen between the operator and the owner, the condominium union or the union association of owners: the first, introduced by the draft decree, deals with the technical state of the common parts and concerns the reception infrastructures (3), while the other two, already provided by the provisions in force, must intervene at the beginning and at the end of the work (4) which must be undertaken by the operator for the installation.
The contradictory observation between the operator and the owner, the syndicate of co-owners or the trade union association relating to the technical status of the common parts of the building or of the routes, equipment or common spaces of the subdivision provided for in Article R. 9-2 of the CPCE allows to determine whether the available reception infrastructures are sufficient for the installation of the lines.
The draft decree provides that the contradictory finding of the state of the common parties may be established prior to the conclusion of the convention or within two months of the agreement. The possibility of achieving the contradictory observation after the conclusion of the convention allows not to delay the conclusion of the convention in cases where the existing reception facilities are insufficient. It also allows the operator and the owner to carry out this observation at the same time as the one to be carried out before the start of the work in accordance with the 4th of Article R. 9-4, which can represent for the parties a gain of time and efficiency. This last point could be explicitly provided by the decree for clarity.
If the flexibility provided by this drafting is therefore welcome, it would be useful to foresee that the operator, when making an offer for the installation, maintenance and replacement of the lines (5), is required to remind the owner, the co-owners' union or the union association that work on the realization or modernization of the hospitality infrastructure may be the responsibility of the owner.
4. Provisions concerning information to be transmitted by the operator signatory to the convention to other operators
The draft decree also adapts the list of information shared with other operators provided for in Article R. 9-2 of the CPCE, adding "the geographic coordinates" of the building or the particular subdivision and "the identifier of the point at which is provided access to the lines provided under Article L. 34-8-3".
The Autorité welcomes the addition of these elements. Indeed, geographic coordinates are necessary, especially in the case of network deployments outside the denser areas where there is not always an address to locate a building. The addition of "the identifier of the point at which the access to the lines is provided" allows for the coherence of the information provided in Article R. 9-3 of the CPCE with those provided by the decisions of the Autorité made pursuant to Article L. 34-8-3 of the CPCE, in particular with Decision No. 2009-1106. In addition, the identifier of the point at which access to the lines is provided pursuant to Article L. 34-8-3 of the CPCE, that is, the point of mutualization within the meaning of the decisions of the Authority, is an essential element in the reading of the provisions of Article L. 34-8-3 of the CPCE which provides that "Access is provided in transparent and non-discriminatory conditions in one point [...]".
In the light of the above, the Autorité welcomes developments and clarifications made by the draft decree on the existing right to the deployment of optical fibre in buildings, helping to make the regulatory framework clearer and more consistent.
II. - On arrangements for the management of domain names under Article L. 45-7 of the CCCB
In the extension of theOrder No. 2014-329 which has reintroduced Articles L. 45 to L. 45-8 of the CPCE after having notified them to the European Commission in accordance with Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 providing for an information procedure in the field of technical norms and regulations, the draft decree proposes to reintroduce the provisions of Articles R. 20-44-38 to R. 20-44-47 of the CPCE
This notice will be forwarded to the Secretary of State in charge of digital technology and will be published in the Official Journal of the French Republic.


Done in Paris, May 5, 2015.


The member of the Authority presided over the session, acting by the president of the Authority,

J. Stern

(1) Some difficulties in interpretation raised by section L. 33-6 of the CPCE led the Autorité to conduct an analysis of the rules applicable to the final connection and to question the stakeholders involved in a public consultation conducted in 2012. The contributions received on this occasion, from operators, administration, associations and professionals in the private and public real estate sector, showed that the analysis and interpretations adopted by the Authority were generally shared by these actors. As a result of this public consultation, the Autorité published a guidance document on 11 February 2013, including some avenues for legislative developments. (2) Notice No. 2014-0191 of 11 February 2014 on a draft order on the digital economy. (3) Article R. 9-2 I, as provided for in the draft Order in Council. (4) Article R. 9-4 (4°), as provided for in the draft decree. (5) Offer referred to in the I of Article R. 9-2, as provided for in the draft decree.
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