Paris, 19 February 2008
Two mediation requests concerning the compliance of cable agreements were brought before ARCEP: one by the city of Hayange on 16 January 2008, and another by the combined district council of Freyming-Merlebach on 23 January. In both cases, the difficulties encountered by the communities concern the issue of provision by Numéricâble, the cable operator and party in the agreements, of documents and information on the cable network, in particular the location and availability of network infrastructures. In the Freyming-Merlebach case, they also concern the provision of information regarding the use of the service.
In accordance with its internal rules, under which any mediation procedure must be approved by both parties, ARCEP transmitted both requests to Numéricâble for its agreement or refusal to take part in the mediation procedure. In both cases, Numéricâble informed ARCEP that it refused to participate, stating that the requests did not concern the compliance of the agreements but rather their performance.
Therefore, given Numéricâble’s refusal to participate, ARCEP cannot initiate the mediation procedures requested by the city of Hayange and by the combined district of Freyming-Merlebach.
Numéricâble did, however, indicate that it is "obviously not opposed, in principle, to calling on ARCEP in the future should mediation be required regarding the compliance of these agreements".
It essential for local authorities to be familiar with their networks, here the special case of cable, in order to encourage the deployment of very high speed in the regions.
Review of cable agreement compliance:
Law 2004-669 of 9 July 2004 on electronic communications and broadcasting services transposed the so-called "authorisation" directive (Directive 2002/20/EC dated 7 March 2002) into French law. This directive states that electronic communications activities no longer require individual authorisations, except for resource assignments (frequencies and numbering), and defines the exhaustive list of the general obligations which can be imposed on operators. This new framework is the purpose of Article L. 33-1 of the Posts and Electronic Communications Code. The Law (Article 134) also incorporated the principle that agreements between local authorities and cable operators for the establishment and operation of cable networks (cable agreements) should be brought in line with the current legislative framework.
In the absence of a consensus among the players involved as to how this principle should be interpreted, the Law of 5 March 2007 concerning the modernisation of audiovisual broadcasting and the television of the future sought to clarify the process needed in order to bring these agreements in line with legislation
In particular, this law required Autorité de Régulation des Communications Electroniques et des Postes (ARCEP) to produce a public report:
- ascertaining the current state of advancement as far as the compliance of these agreements is concerned
- differentiating between the various legal categories of the agreements
- issuing recommendations aimed at procuring the compliance of these agreements with the law
In application of these provisions, ARCEP published a report in July 2007 on the compliance of cable agreements which aimed to meet the objectives established by the law. In particular, it stated that it was not able to rule on the legal nature of the agreements in force at the time of the entry in force of the Law of 9 July 2004. Only judges are competent to answer this question.
The law of 5 March 2007 also granted ARCEP mediation powers in order to help resolve problems encountered in ensuring these agreements are compliant. Because of these powers, the city of Hayange and the combined district council of Freyming-Merlebach brought their mediation requests before ARCEP in January 2008.