Paris, 21 December 2011
In a Decision issued on 4 November 2010, ARCEP settled a dispute between France Telecom and Numericable.
ARCEP had considered that clauses pertaining to the operating modalities, contained in the cable network sales contracts (1) and applied by Numericable when it upgrades these network by deploying new optical fibre cables, should be amended to conform to the clauses applicable to all operators deploying FTTx networks.
This decision, which was upheld by an order issued by the Paris Court of Appeals on 23 June 2011, is currently under appeal before the Court of Cassation. Neither the initial appeal nor the appeal in cassation has a suspensory effect.
Up until the end of November 2011, Numericable had refused to comply with the decision of 4 November 2010, even though it had a compliance deadline of two months.
ARCEP has ascertained that throughout 2011 Numericable consistently refused to comply with the decision of 4 November 2010 – a refusal that extended well beyond the two-month deadline set by this decision. It was not until the end of November 2011 that Numericable agreed to amend the cable network sales contracts, in accordance with the dispute settlement decision.
Failing to comply with an ARCEP dispute settlement decision constitutes a particularly serious breach which warrants a fine of €5 million in cash.
The late compliance, which is due entirely to Numericable, constitutes a violation of public policy in the economic sphere and so a particularly serious breach. As a result, in accordance with Article L. 36-11 of the French Postal and electronic communications code (CPCE), ARCEP has imposed a cash fine of €5 million on Numericable.
(1) Between 1999 and 2004, France Telecom had sold its cable networks to Numericable once four of its contracts expired. These networks are part of the France Telecom civil engineering infrastructure.