Compliance and Regulation Law bilingual Dictionnary

Autorité de Régulation des Communications Electroniques et de la Roste (ARCEP)

by Marie-Anne Frison-Roche


The Autorité de Régulation des Communications Electroniques et de la Poste (ARCEP) is an independent administrative authority (AAI). In 2005, it took over from the Autorité de Regulation des Télécommunications (ART), which was created in 1996. ART was the first regulatory authority of its kind, inaugurating under the impetus of European Union Law the wave of liberalization of previously monopolistic sectors. ARCEP has a broader competence than that of ART, also regulating postal activities and its role is to promote the exercise of "effective and fair competition for the benefit of users", which brings it particularly close to the general office of the Autorité de la concurrence. This regulator must still take into account the "interest of the territories" and user access to services and equipment.

ARCEP has jurisdiction to regulate what carries information (container) while the Conseil Supérieur de l'Audiovisuel (CSA) has jurisdiction to regulate the information transported (content). This distinction between container and content therefore forms the basis of the duality of regulators. But in the first place it is fragile and little used abroad, other countries preferring to have a single regulator for the container and for the content, insofar as the information can pass through various containers (e.g. television or the telephone) as in the United States (Federal Communication Commission - FCC). Second, the Internet makes it difficult to handle this distinction. This is why the hypothesis of a merger of the two French regulatory authorities is sometimes mentioned.

ARCEP monitors wholesale markets, in which operators must behave in a non-discriminatory manner and publish a reference offer. It controls prices and forces a price orientation towards cost, favoring downstream, that is to say (retail market), competitive dynamism. On this, the regulator ensures access to the transmission network and the distribution network to the end consumer (local loop issue). ARCEP has the power to allocate frequencies to operators, which are scarce resources, the allocation of which can be withdrawn from the operator in the event of a breach. But beyond these very technical dimensions, the regulator exercises a political function because it projects into the future a certain conception it has of the sector. Thus it can estimate or not that the optical fiber should or not be favored and force the operators in this direction. Likewise, it can adhere to the theory of “net neutrality” in the name of which it will force the owners of a network to open it up to users, even at the cost of investments to accommodate them, the regulator then fixing the compensation for such a right of access. Adherence to this much debated theory is not technical but political in nature.

ARCEP has the aforementioned power to withdraw frequencies from operators not fulfilling their obligations and can take protective measures. These can be challenged before the Paris Court of Appeal. The authority exercises the power of dispute resolution and the power of sanction. ARCEP publishes an annual report, a way for the Authority to report, this mode of responsibility being balanced against its independence.

As in 1996 for telecommunications, from 2005 the regulator opened up postal activities to competition, while ensuring the continuation of the public postal service. The Law of February 9, 2010, while transforming La Poste into a public limited company, ensured that its public service obligations were maintained and even extended them by entrusting it with spatial planning obligations, showing interregulation with environmental regulation. Through this control, the regulator exercises more political than technical power.

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