Free wins fibre unbundling case against Orange

Alan Burkitt-Gray
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Paris Court of Appeal backs regulator’s judgement against Orange for overcharging for access to fibre backhaul

French operator Free has won a long-standing legal dispute over the prices Orange was charging for access to fibre backhaul networks.

The French regulator Arcep first decided in favour of Free in July 2015 but Orange appealed. Now, two years later, the Paris Court of Appeal has upheld Arcep’s decision.

In a decision that is damning of Orange’s position, the court says – in Arcep’s translation into English – that “overcharging, which results in Free assuming the artificial burden of the cost of building a network which would be as useless as it would be inefficient to build, only serves to impede, to everyone’s detriment, investment and motivation for technological progress”.

Arcep said it welcomed the judgement, adding that the decision “reinforces its draft analysis decision on the broadband and superfast broadband market … which stipulates that the Orange generic passive backhaul solution must enable the backhaul of fixed local loop traffic, regardless of the traffic’s origin, and at prices that are not contingent on the nature of that traffic”.

Free complained about the prices charged for services used to backhaul traffic from its mobile base stations over an Orange fibre connection.

According to Arcep, Free – which had relied heavily on local loop unbundling on the legacy copper network to connect its mobile base stations – had begun to invest in its own fibre rollouts to replace the copper pairs it had been leasing from Orange.

The regulator says: “To be able to pursue this strategy, Free needed to make use of Orange co-location and backhaul solutions. Free was therefore challenging the excess prices that Orange was charging for these solutions when they were being used to backhaul traffic from Free’s mobile base stations over an optical fibre connection.”

Arcep says the Paris Court of Appeal’s judgement validates its original 2015 decision in favour of “investment and motivation for technological progress”.