Referral to Arcep
Arcep's request for an opinion concerns, on the one hand, the identification of product and service markets for which ex ante intervention is necessary to develop competition and, on the other hand, the designation of operators considered to be “powerful” on the markets concerned.
Arcep's request for an opinion also relates to a draft decision specifying the terms and conditions of access to very high-speed optical fiber networks, applicable to all operators operating very high-speed optical fiber networks. up to the subscriber (so-called “FttH” networks for Fiber to the Home ).
Markets bringing together high and very high-speed offers, over which Orange exercises significant influence
The Authority supports maintaining a single market for high-speed (HD) and very high-speed (THD) offers, as proposed by Arcep, both in the generalist segment and in the “business” segment, such as it had done so previously in its previous opinion of 2017 (see press release of May 9, 2017 ).
The Authority has mainly relied on the fact that there is no service or application widely acclaimed by users and available only with a very high-speed connection. On the “business” market, the Autorité noted that the physical connection medium, or even the speed of the access offered, is less decisive, for the vast majority of businesses, than the quality of service offered.
However, the current competitive dynamic, driven by very high-speed broadband, and the potential emergence of services available exclusively on very high-speed broadband, could call into question this delimitation during the coming cycle.
In addition, Arcep has chosen to introduce, for the first time, a separate analysis of the market for the wholesale supply of access to physical civil engineering infrastructure for the deployment of fiber optic networks and to extend, by elsewhere, analysis of civil engineering offers that can be mobilized for the deployment of collection networks, in addition to civil engineering offers that can be mobilized for the deployment of local optical loops. The Authority welcomes Arcep's choice to carry out a separate analysis of these two categories of offers, and shares the conclusions it reaches, in particular with regard to the importance of the civil engineering infrastructure that will make it possible in the future to guarantee and supervise the deployment of fiber optic networks.
The Authority supports the designation of Orange as the only operator capable of exerting significant influence on all the markets subject to asymmetric regulation.
The effectiveness of the obligations imposed on Orange on the civil engineering market
Regarding the main regulatory changes, the Authority welcomes Arcep's proposal, on the civil engineering access market, to impose on Orange, when it grants reasonable requests from third-party operators renovation of civil engineering, to commit to a maximum and reasonable duration of the work.
The Authority nevertheless notes that a mechanism specifying the modalities for assessing a reasonable duration would be able to ensure full effectiveness of this measure.
In addition, in a context where third-party operators have the possibility of intervening independently for the renovation of civil engineering, the Autorité stresses, on the one hand, the need for Orange to treat operations in the same way as it carries out for its own needs and those it carries out at the request of third-party operators and, on the other hand, the importance that the choice of third-party operators to intervene autonomously is not solely guided by a possible inertia of 'Orange. The Authority also stresses that it is essential that the operational and financial methods defined by Arcep in its draft decision guarantee non-discriminatory treatment by Orange of the requests submitted to it.
Objective and precise rules concerning the closure of the Orange copper network
Regarding the methods of supporting the closure of the Orange copper network, which will run from 2023 to 2030, the Authority has carefully examined the issue of switching from the copper network to the FttH network, and consequences linked to the dismantling of the copper network by Orange, both for this operator and for the other operators who will be affected.
This impact will include a financial dimension (change in the “unbundling bill” paid by operators to Orange for their subscribers connected to the copper network), as well as a technical, commercial and operational dimension, with regard to the various components linked to the shutdown. of the copper network for the subscribers concerned (for example the planning of the necessary works or the anticipation of the switchover of subscribers from copper to fiber, etc.).
The Authority considers that it is of the utmost importance that the rules be defined as objectively and precisely as possible, and sufficiently in advance for the operators to be able to organize themselves. The Authority approves in particular Arcep's proposal to allow a "rapid" closure of the copper network (with a notice period of two months for general offers and six months for specific business offers), only on areas where national operators of national scope (OCEN) are present on the FttH networks.
In addition, the Autorité wishes to reiterate the importance of taking into account the specificities of the business market to define precise closure criteria.
The Authority also invites Arcep, pending a concrete closure program from Orange, to analyze in depth the economic incentives linked to the unbundling tariff, and its possible changes, and to the timing. the shutdown of copper lines, in order to ensure that the measures taken do not unduly favor or disadvantage certain operators, and do not weaken the current competitive dynamic.
The Authority is pleased that the prospect of exiting the copper network is now clearly set by Orange, while the operators are committed to heavy investments for the deployment of FttH. The Authority also welcomes the main lines defined by Arcep for the operational process of switching from copper to FttH.
Quality of service: an essential parameter for competitive dynamics
Regarding the issue of quality of service, the Competition Authority takes note of the introduction of an obligation on Orange to respect quantified service quality thresholds for general copper offers (unbundling and activated) and FttH with enhanced quality of service, as well as high quality copper and fiber access offers for businesses. This obligation is in addition to the pre-existing obligations to provide for contractual quality of service commitments with a penalty mechanism, and to publish quality indicators.
In addition, the Authority welcomes the introduction of a mechanism of quality of service obligations (quantified thresholds, contractual commitments with penalties and publication of indicators) applicable to all infrastructure operators offering FttH offers on the loop. mutualized optical local (the "BLOM", namely the network deployed from the mutualization point, where applicable, from the mutualized remote connection point, to the accommodation of subscribers), including when these offers include a quality of service option reinforced.
The Authority considers it necessary that these service quality obligations, which meet the needs of business customers in particular, also allow operators the ability to differentiate themselves on the retail market.
Measures aimed at strengthening the competitive dynamic in the business market
On the business market, the Authority is in favor of the obligation imposed on all infrastructure operators to provide wholesale offers with two levels of enhanced quality of service on the BLOM as well as the establishment of a price reproducibility test to ensure the possibility for alternative operators to reproduce Orange's retail offers from these wholesale offers activated on the dedicated optical local loop (the “BLOD”) in the dedicated fiber optic zone 2 (ZF2). The Autorité considers that these offers should allow alternative operators to meet the needs of many companies, and therefore to offer offers of a level of quality approaching that of offers built on the BLOD with significantly lower barriers to entry. .
Strengthening the measures applicable to operators who have deployed FttH fiber optic networks, in particular in terms of non-discrimination
The Authority supports Arcep's choice to require operators who have deployed FttH networks to set up “common tools” to offer access to each operator who requests it, including their possible downstream branch to point of mutualization. This mechanism is indeed consistent with the concept of equivalence of inputs 2 recommended by the European Commission to implement the obligation of non-discrimination on very high speed fiber optic networks 3 . The Authority also supports Arcep's choice of an obligation imposed on all infrastructure operators, with regard to the control they exercise over their downstream network at the pooling point, as well as the Authority. 'suggested in its 2017 opinion.
On the other hand, the Authority notes that Arcep provides, by way of exception and if certain conditions are met, to give certain infrastructure operators the possibility of implementing a simple equivalence of treatment between all the operators. On this point, the Authority invites Arcep to assess this exemption strictly, such an obligation being less likely to provide advantages in terms of non-discrimination than equivalence of inputs.
In addition, the Authority approves the measures, applicable to all infrastructure operators having deployed FttH networks, aimed at ensuring the availability of fiber in less dense areas, as well as the new accounting obligations imposed by Arcep on these operators.
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New recommendations aimed at specifying the obligations in force
The Authority takes note of the Arcep project recommending that operators set up a mechanism to postpone the opening to the sale of fiber optic lines for all the pooling points for which the delivery date of the services required by commercial operators is not compatible with the scheduled opening date for marketing. In this regard, the Authority invites Arcep to ensure that commercial operators are able to market their offers on an equal footing with an integrated infrastructure operator. The Authority further observes that the proposed measure could be considered as a direct application of the principle of non-discrimination provided for in Article L. 34-8-3 of the CPCE,
Lastly, Arcep plans to recommend to all infrastructure operators who have established or operated indoor pooling points in buildings in very dense areas to apply the solutions implemented by Orange during the previous cycle in order to guarantee effective access to internal pooling points, and that this access is carried out under non-discriminatory conditions. The Authority takes note of this project and recalls, as it did in its 2017 opinion, that all infrastructure operators are responsible for ensuring effective access to the pooling points they deploy. , and this under non-discriminatory conditions. Since then,
1 Market “3a” concerns the wholesale supply of local access at a specific location; market "3b" concerns the wholesale supply of central access in a determined position; market “4” concerns the wholesale supply of high-quality access at a fixed location.
2 Provision of services and information to internal and third-party access seekers under the same conditions, including with regard to price and quality of service levels, schedules, systems and processes used and level of reliability and performance.
3 European Commission recommendation n ° 2013/466 / EU of 11 September 2013 on non-discrimination obligations and coherent cost calculation methods to promote competition and encourage investment in broadband.