TELECOMMUNICATIONS BILL
Art. 5. For chapter II of title I of book II of the Posts and Telecommunications Code there shall be substituted the following provisions:
"Chapter II
Legal Regime
Section I
Networks Art. L. 33 Telecommunications networks shall be established under the conditions laid down in this section.
This section shall not apply to the following:
1) - network infrastructure established by the Government in the interests of national defence and public security, or using frequency bands or frequency spectrum allocated by the Prime Minister to an administration for its own requirements, in accordance with article 21 of law n° 86-1067 of 30 September 1986 on the freedom of communication;
2) - network infrastructure referred to in articles 10 and 34 of the same law. Network infrastructure of this type used for the provision of public telecommunications services shall be subject to the provisions of this code governing the operation of public networks, only for the provision of telecommunications services.
Art. L. 33-1 I - The establishment and operation of public networks shall be authorised by the telecommunications minister.
Licences may only be refused on the grounds of public order or in the interests of national defence and public security, or as a result of technical constraints due to the limited availability of frequencies, or when the applicant does not have the technical and financial capacity to sustainably meet the obligations resulting from the conditions under which its activity is carried out, or when it has been the subject of one of the penalties referred to in article L. 36-11.
Licences shall be granted subject to compliance with the provisions contained in the schedule of conditions governing the following:
a) - the nature, characteristics, service coverage area and network extension schedule;
b) - the operating hours, quality and availability of the network, as well as the access conditions, particularly for public pay phones;
c) - the conditions of confidentiality and neutrality of the service with regard to the information transmitted;
d) - the appropriate standards and specifications for networks and services, particularly European standards when justified;
e) - the provisions required for the protection of the environment and for town and country planning objectives, including, where appropriate, conditions governing the occupation of the public domain and the sharing of facilities;
f) - provisions required in the interests of national defence and public security;
g) - the contribution of the operator to research and training in the field of telecommunications;
h) - the use of the radio spectrum, the fees related to this use and the costs of spectrum management and monitoring;
i) - the allocation of a number or a range of numbers, fees due for the management and control of the numbering plan, under the conditions laid down in article L. 34-10;
j) - universal service obligations incumbent on the licence holder in accordance with articles L. 35-2 and L. 35-3;
k) - the provision of the information required to establish the universal directory referred to in article L. 35-4;
l) - the rights and obligations of the operator with regard to interconnection;
m) - the conditions necessary to ensure fair competition;
n) - the conditions necessary to ensure the equivalent treatment of international operators;
o) - the conditions necessary to ensure the interoperability of services and the equal treatment and provision of information to users, particularly concerning the contractual conditions under which the service is provided;
p) - the obligations incumbent upon the operator to allow the telecommunications regulatory authority to enforce the operator's schedule of conditions;
q) - fees payable for issuing, managing and controlling licences under the conditions stipulated in the Finance Act;
r) - the minimum notice to be given to the licensee concerning the licence renewal conditions, and the grounds for refusing renewal.
Licences shall be granted for a period of fifteen years. This provision does not exclude the possibility of licences of shorter duration being issued in justified cases.
A decree shall specify which of the clauses enumerated above must conform with standard clauses of which it shall determine the content. The provisions of this decree relating to the clause referred to in m) above shall be submitted for opinion to the Conseil de la Concurrence (hereinafter referred to as the "competition authority").
II - An operator with an annual turnover exceeding a threshold set by the telecommunications minister and the minister for the economy shall be required to keep separate accounts for the authorised activity.
Moreover, if an operator enjoys a monopoly or dominant position, in the opinion of the competition authority, in a sector other than the telecommunications sector, and the infrastructure used may be separated, the operator shall be required to separate this activity from his telecommunications activities on a legal basis for the purposes of fair competition.
III - Subject to international agreements signed by France comprising a clause of reciprocity applicable to the telecommunications sector, the licence referred to in this article, when relating to a network using radio frequencies, may not be issued to a company in which more than 20% of the share capital or the voting rights are held, either directly or indirectly, by foreign nationals.
Furthermore, a foreign national may not make any transaction whose result is to increase, either directly or indirectly, the share held by foreign nationals in a licensed company to more than 20% of the share capital or the voting rights at the annual general meeting.
For the purposes of this article, a foreign national means a natural person of foreign nationality or an artificial person whose majority of shares is not held, either directly or indirectly, by natural or artificial persons of French nationality.
The provisions of the present point III shall not apply to natural or artificial persons who are nationals of a member state of the European Union or a member state of the European Economic Area.
IV - Subject to international agreements concluded by France, the telecommunications minister and the telecommunications regulatory authority shall ensure that operators licensed to route international traffic to and from French public networks enjoy equivalent treatment, in particular with regard to interconnection conditions to the French and foreign networks to which they request access.
Subject to the same reserve, they shall also ensure that the rights conferred by operators in countries outside the European Union upon the operators licensed in accordance with articles L. 33-1 and L. 34-1, are comparable with the rights they enjoy on the national territory, particularly with regard to interconnection conditions, in application of this code. .
V - The number of licences may be limited owing to technical restrictions due to the scarcity of frequencies.
In this case, the telecommunications regulatory authority shall propose the terms and conditions governing the licensing procedure, which shall be published by the telecommunications minister.
Art. L. 33-2 The establishment of independent networks, other than those referred to in article L. 33-3, shall be authorised by the telecommunications regulatory authority.
A decree shall set out the general conditions governing the establishment and operation of these networks, in relation to the essential requirements, provisions in the interests of public security and defence and the terms governing the installation of the network to be respected by independent network operators. It shall also set out the conditions under which the latter, together with those referred to in article L. 33-3, may be connected to a public network, without allowing the conveyance of calls between persons other than those for whom use of the network is reserved.
A licence may only be refused in the event of non-conformity with one of the conditions governing the establishment of networks. Failing an express decision within two months following the licence application, the latter shall be deemed to be acquired.
When the licence concerns an independent network using radio frequency spectrum allocated to its operator, the licence shall be explicit and shall be accompanied by a schedule of conditions concerning the provisions referred to in item h) of point I of article L. 33-1, which shall specify the obligations incumbent on the licence holder, in application of the decree provided for in the second paragraph of this article.
Art. L. 33-3 The following may be set up without restriction, on condition that they conform with the provisions of this code:
1) private networks;
2) pay phones not installed on the public highway;
3) independent local networks, other than radio networks, whose termination points are less than a certain distance apart, as defined by the telecommunications minister;
4) low power, short range radio network infrastructures whose categories are determined jointly by the ministers for telecommunications, for defence and for the interior;
5) radio network facilities which do not use an individual frequency assignment.
The operating conditions for the above-mentioned radio facilities shall be set out in the provisions of article L. 36-6.
Art. L. 33-4 The publication of lists of subscribers or users of telecommunications networks and services shall be unrestricted, subject to the regulatory provisions governing the protection of personal data.
Section 2
Telecommunications services Art. L. 34 This section shall apply to public telecommunications services.
Art. L. 34-1 The provision of a public telephone service shall be licensed by the telecommunications minister.
Licences may only be refused on the grounds of public order, in the interests of national defence and public security, when the applicant does not have the technical and financial capacity to sustainably meet the obligations arising out of its operating conditions, or when it has been the subject of one of the penalties referred to in article L. 36-11.
The licence shall be subject to compliance with the schedule of conditions concerning the points referred to in I of article L. 33-1, with the exception of e) and h).
When the provision of a service presupposes the establishment of a public network, the licence granted in application of article L. 33-1 shall authorise the provision of the service.
Art. L. 34-2 The provision of public telecommunications services other than the telephone service shall be unrestricted, on condition that there is conformity with the essential requirements and with national defence and public security requirements.
The services referred to in article L. 34-3 shall be subject to a licence and the services referred to in the first paragraph of article L. 34-4 shall require a declaration.
A State Council decree shall set out the content of the declaration and the licence application and shall specify in the licence conditions the technical specifications to be met in order to ensure conformity with the essential requirements.
Art. L. 34-3 The provision of a public telecommunications service using radio frequency spectrum shall be subject to a licence under the following conditions:
1) - when the provision of the service presupposes the establishment of a new network or changes to a network which has already been licensed, the provisions of article
L. 33-1 shall apply;
2) - when the service is provided by a network using radio frequency spectrum allocated by an authority other than a telecommunications authority, a licence shall be required, which shall be subordinated to the provisions referred to in article L. 33-1. The licence shall be issued by the telecommunications minister after approval from the authority responsible for allocating radio frequency spectrum.
Art. L. 34-4 The provision of public telecommunications services other than the telephone service, over networks established in accordance with the broadcasting law
n° 82.625 of 29 July 1982 and article 34 of the aforementioned law of 30 September 1986, shall be subject to declaration to the telecommunications regulatory authority.
The sole purpose of this declaration shall be to enable the telecommunications regulatory authority to control the nature of the service provided and the installations used.
When the service proposed is the public telephone service, the provision of the service shall be licensed in accordance with the provisions of article L. 34-1.
When the purpose of the service proposed is directly concerned with the provision of radio and television services broadcast over the network, the provisions of 1) of article 34-2 of the aforementioned law of 30 September 1986 shall apply.
Arrangments in force which prohibit the provision of telecommunications services over networks licensed in application of the law of 29 July 1982 or article 34 of the law of 30 September 1986 or impose restrictions of a legal or technical nature, shall be brought into conformity with this code by 1 January 1998 at the latest. These same arrangements shall guarantee the owner the proper remuneration of these networks to cover the cost of providing the service and the cost of investments undertaken. The telecommunications regulatory authority may be called upon to settle disputes according to the provisions of article L. 36-8.
Section 3
General provisions Article L. 34-5 Two specialised consultative commissions shall be set up by the telecommunications minister and by the telecommunications regulatory authority, one in the field of radio networks and services, and the other for the services referred to in articles L. 34-1, L. 34-2 and L. 34-4. These commissions shall consist of equal numbers of service providers' representatives, users' representatives, and qualified persons appointed by the telecommunications minister.
The relevant consultative commission shall be consulted by the telecommunications minister and by the telecommunications regulatory authority on all proposals concerning licensing procedures, setting out or modifying technical and operating conditions and technical specifications and requirements concerning the services which lie within its field of competence.
The commissions' conclusions shall be sent to the public service commission for posts and telecommunications.
A decree shall set forth the composition, the functions and the operating conditions of these two consultative commissions.
Art. L. 34-6 A licence granted to a person under sections 1 and 2 of this chapter shall not be transferable to any other person.
A licence granted under articles L. 33-1, L. 34-1 and L. 34-3, shall be published in the French Official Journal, together with the schedule of conditions appended thereto, where applicable.
Licence refusals shall be fully reasoned and notified to the parties concerned.
The suspension and total or partial revocation of a licence shall be determined by the telecommunications regulatory authority under the conditions set out in article L. 36-11.
Article L. 34-7 Telecommunications infrastructure installed on the public domain or for public service requirements may be operated as a public telecommunications network and used to provide a telecommunications service, subject to compliance with the provisions of this code.
Section 4
Network Access and Interconnection Art. L. 34-8 I - Public network operators shall satisfy requests for interconnection from operators licensed in accordance with articles L. 33-1 and L. 34-1, under objective, transparent and non-discriminatory conditions.
Interconnection may not be refused if the request is reasonable with regard to the applicant's requirements and the operator's capacity to satisfy them. All interconnection refusals shall be fully reasoned.
Interconnection shall be subject to an agreement between the two parties concerned. This agreement shall set out the technical and financial conditions governing interconnection, in accordance with this code and with the decisions concerning its implementation. A copy of this agreement shall be sent to the telecommunications regulatory authority.
When essential for the purposes of fair competition and the interoperability of services,
the telecommunications regulatory authority may ask for the agreement to be modified, after consultation with the competition authority.
A decree shall set out the general conditions, particularly those relating to the essential requirements and pricing principles which interconnection agreements must satisfy.
II - A public network operator mentioned in the list established under section 7) of article L. 36.7 shall be required to publish the technical and pricing terms of the interconnection offering, with the prior approval of the telecommunications regulatory authority and according to the conditions set out in the schedule of conditions. Interconnection tariffs shall be cost-oriented and shall cover the effective cost of using the network.
The offer mentioned in the paragraph above is designed to meet on the one hand the interconnection requirements of public network operators and on the other hand the network access requirements of public telephone service providers, taking into account the rights and obligations of each of these categories of operators.
The above-mentioned operators shall provide users and suppliers of telecommunications services other than the public telephone service, with access to their network and to the audiovisual communication services declared in application of article 43 of the aforementioned law of 30 September 1986 under objective, transparent, non- discriminatory conditions.
III - The telecommunications regulatory authority may be called on to settle disputes relating to the refusal of interconnection, interconnection arrangements or access conditions, in accordance with article L. 36-8.
Section 5
Terminal equipment Article L. 34-9 There shall be no restriction on the sale of terminal equipment.
Equipment intended for connection to a public network and radio network facilities shall be tested for conformity with the essential requirements. The bodies involved in the conformity testing procedure shall be independent of the companies providing goods and services in the field of telecommunications.
A State Council decree shall determine
1) the conditions under which the bodies responsible for issuing certificates of conformity are designated;
2) the technical specifications for equipment subject to conformity testing which shall be drawn up and published, as well as the conditions governing the connection of equipment to public networks.
3) the cases in which a technical qualification is required for the connection and bringing into service of equipment and infrastructure and the conditions enabling this qualification to be guaranteed.
4) the procedure for assessing conformity and issuing the corresponding certificates, the cases in which conformity is acquired tacitly and the special conditions under which the certificate is issued for infrastructures intended for connection to the networks referred to in 1) of article L. 33.
Terminal equipment and apparatus subject to the conformity assessment procedure referred to above may only be manufactured for the European Economic Area, imported for inward clearance from countries outside the latter, kept in view of sale, marketed, distributed free of charge or in return for payment, connected to a public network or advertised, if they have been issued with a certificate of conformity and comply thereto at all times.
Section 6
Numbering Article L. 34-10 A national numbering plan shall be established and controlled by the telecommunications regulatory authority. It shall ensure equal access for users to the various telecommunications networks and services.
The telecommunications regulatory authority shall allocate a number or range of numbers to an operator, under objective, transparent, non-discriminatory conditions, in return for a fee to cover the management costs of the numbering plan and the control of its use.
The conditions under which a number or range of numbers may be used shall be specified in the schedule of conditions of the operator's licence, or in the allocation decision.
The telecommunications regulatory authority shall ensure that the numbers allocated are used efficiently. A number or range of numbers may not be protected by industrial or intellectual property rights. Numbers shall only be transferrable with the prior consent of the telecommunications regulatory authority.
As of 1 January 1998 subscribers who change operator without changing their geographical location may retain their number, on condition that there is sufficient transfer capability at this date. Until 1 January 2001 the cost incurred on the initial operator by the transfer shall be paid by the new operator which may then bill the subscriber. Operators shall include the necessary provisions in the interconnection agreements concluded amongst themselves. The provisions of this paragraph shall not apply to numbers allocated to mobile networks and used to provide mobile services.
As of January 2001 users may request:
- to retain their telephone number in the event of a change of operator without a change of geographical location.
- to obtain a number from their operator, which they may retain in the event of a change of operator or geographical location.
As of the same date, operators shall include the necessary provisions in their interconnection agreements and shall make this facility available to their users, under conditions to be approved beforehand by the telecommunications regulatory authority."