Paris Court of Appeal upholds in its entirety the ARCEP decision on the settlement of a dispute between France Telecom and Numéricâble relating to the terms for accessing France Telecom civil engineering for Numéricâble fibre deployments.

Paris, 27 June 2011

In response to a request from France Telecom to settle a dispute, through a decision issued on 4 November 2010, ARCEP ordered Numéricâble to comply with the operational terms set by France Telecom for accessing its civil engineering, when upgrading its network.

Numéricâble had upgraded a portion of its coaxial networks by deploying optical fibre cable using civil engineering ducts owned by France Telecom, in accordance with the terms of transfer agreements that it had signed with France Telecom in 1999, 2001 and 2004. France Telecom considered that, because several operators have come to use its ducts to deploy their optical fibre networks since 2008, under the terms of its regulated civil engineering access offer, Numéricâble should be required to comply with the same operating modalities as all of the other operators.

Through an order dated 24 June 2011, the Paris Court of Appeal rejected the request from Numéricâble to overturn the Authority's decision and so upheld the ARCEP analysis in its entirety.

The Court examined each of the dictates at issue and considered that the ARCEP decision justified both the need for and proportionate nature of the operational adjustments it imposed. By ascertaining that when replacing coaxial cable with optical fibre, Numéricâble is in no different a situation than the other operators who are deploying their fibre networks from scratch, the Court has upheld the Authority's assessment, and rejects an appeal on the grounds of discrimination. The ARCEP decision questions neither Numéricâble's right to maintain and operate its cable networks under the terms of the agreements, nor its ability to replace cable with fibre under conditions that allow all operators to enjoy efficient and shared access to France Telecom civil engineering.

The Court issued a reminder that, "the task of regulation assigned to ARCEP by law gives it the power to impose on operators that fall under its purview restrictions and injunctions that affect the establishment, the content and the execution of their agreements and so restrict the principle of contractual freedom, for reasons of public policy in the economic sphere".

The Court therefore upholds the Authority's approach with respect to the "overall consistency" of the issue at hand, namely to allow operators to perform their operations using France Telecom civil engineering in an autonomous, rapid and coordinated fashion. This coordination is in the interest of all of the stakeholders involved in optical fibre rollouts.