The French Official Journal of 22 June 2004 contained the “Loi N° 2004-575 du 21 juin 2004 pour la confiance dans l’économie numérique” (LCEN).
This is a wide-ranging piece of legislation, affecting Internet Service Providers (ISPs), other xSPs, and also fixed and mobile telecommunications operators, as well as public bodies such as municipalities and groups of municipalities interested in developing telecommunications infrastructure and services within the geographical area that falls under their responsibility.
The law addresses, amongst others, the following Internet-related topics:
- Limited responsibility of hosting providers for hosted content
- Caching of content by ISPs
- eCommerce, online advertising, telemarketing, contracts
- Cryptography, digital certification and digital signatures
- Cybercrime
The law also sets out the conditions under which municipalities and groups of municipalities are entitled to provide telecommunications infrastructure to operators, and, more importantly and more controversially, are entitled to provide infrastructure below cost or subsidies to operators, use various financing systems (délégation de service public / marché public) and are entitled themselves become full service telecommunications infrastructure operators and service providers to end-users.
The applicable terms and conditions for the various modalities of public sector intervention and initiatives are quite detailed, and cannot be reproduced in full in this news item.
As regards the full service activity model, i.e. where a municipality or a group of municipalities wishing to become a full service telecommunications operator in its own right, there is a requirement for the public entities to demonstrate the absence or insufficiency of private sector initiatives (by showing that they called a public tender, and did not receive adequate proposals from the private sector). Public entity full service operators are subject to the full set of rights and obligations established by telecommunications legislation/regulation, are subject to an obligation of accounting separation, and municipalities have to separate the function of telecommunications operator from their role in granting rights-of-way. In addition, the regulatory authority ART is granted explicit dispute resolution powers, for instance to deal with possible issues surrounding discriminatory treatment of other operators.
The law also introduces the possibility for infrastructure sharing and local roaming for 2G mobile operators in areas where no GSM coverage exists today, and foresees various mechanisms to extend such coverage, including by municipalities making available infrastructure and by granting public subsidies. Detailed conditions and reporting/approval are applicable.
The LCEN also addresses satellite communications, and per-second billing for fixed and mobile telephony on the French mainland (following a hot debate in the past months on the so-called “indivisible first minute” issue, which was finally settled by requiring per-second billing, but allowing a call set-up fee).
The full text (in French) of the LCEN can be accessed by clicking here.
For an in-depth discussion, please contact Yves Blondeel.