Paris, 26 July 2016
The ability to access existing civil engineering infrastructure plays a vital role in the economic and operational equation of optical fibre superfast network rollouts. This is why, back in 2008 and to facilitate operators' large-scale optical fibre network deployments, Arcep required Orange to provide access to its local loop civil engineering infrastructure under transparent and non-discriminatory conditions.
The successive market analysis decisions, including the Decision of 26 June 2014 which is currently in effect, stipulate in particular that, for its own rollouts, Orange must be subject to the same operational, technical and pricing terms and conditions as alternative operators, according to a principle of equivalence of inputs (EoI) (1). This is an especially advanced form of non-discrimination, more demanding than the one applied to the other regulated wholesale products that Orange sells, because having access to civil engineering infrastructure is crucial to the successful deployment of optical fibre superfast networks.
In early October 2015, the Arcep body responsible for investigating and settling disputes over operators' failure to meet their obligations (2), opened an investigation into Orange. This procedure concerns the verification that Orange is meeting with its non-discrimination and transparency obligations when providing access to its civil engineering infrastructures. It pertains to optical local loop deployments for the business market, a retail market in which Orange continues to enjoy significant power and the largest market share.
The investigation made it possible to ascertain that, when deploying its own optical fibre network for businesses, the Orange Retail branch did not employ the same order processes and interfaces as alternative operators.
In light of these elements, on 20 July 2016 it was decided that Orange be issued with an official order:
- first, to provide access to its local loop civil engineering infrastructures under the same conditions to alternative operators and to its own departments in terms of the processes and interfaces used for ordering access to civil engineering infrastructures in the business market across the entire country, by 30 September 2016;
- second, to meet its obligation to provide information on accessing its civil engineering infrastructures for optical local loop deployments in the business market, by 31 January 2017;
- lastly, to measure and publish on its website the missing indicators on Orange Retail orders for access to Orange civil engineering infrastructures for the business market, by 31 October 2016.
The Arcep body responsible for investigations and settling disputes has stressed that investigations continue into other possible failures on the part of Orange to comply with its non-discrimination, transparency and quality of service obligations when providing access to its local loop civil engineering infrastructures.
If Orange fails to comply with this decision within the allotted timeframe, the case could be referred to the Arcep Restricted body which may, if warranted, impose a penalty.
The Decision, with any elements protected by trade secrecy removed when applicable, will be published in the coming days on the Arcep website.
(1) As reiterated in the reasons for Decision No. 2014-0733 of 26 June 2014, in its "non-discrimination" Recommendation 2013/466/EU of 11 September 2013, the European Commission defines equivalence of inputs as "the provision of services and information to internal and third-party access seekers on the same terms and conditions, including price and quality of service levels, within the same time scales using the same systems and processes, and with the same degree of reliability and performance […]".
(2) In accordance with these texts, ARCEP's Executive Board has been organised into three distinct bodies, each with distinct duties and powers. The plenary body includes all seven members of the Executive Board. Disputes, legal proceedings and investigations (opening a preliminary investigation procedure, issuing notices to comply and notifying complaints) are the responsibility of a special body referred to in French as "RDPI", composed of four of the seven members of the Executive Board, including the Chair. A third, so-called restricted body composed of the other three members of the Executive Board, deliberates on decisions to impose or not impose penalties.
Arcep's decision n° 2016-0972-RDPI (pdf - 585 Ko) (in French only) (published the 27th September 2016)