" Arcep has decided to prohibit the cascading of numbers

From a regulatory point of view, what are the issues surrounding portability in the telecom market?

The situation has changed significantly in recent years. Historically, all customers were with Orange, so portability was easy to achieve. Then new players arrived: Bouygues Télécom, SFR, Free... The first portability between different operators then began. And as customers changed providers, it was necessary to port the portability of the portability(editor's note: this is what we call subsequent portability), and so on. Numbers were ported several times, resulting in increasing complexity, which had not been fully addressed.

Another practice that complicates the process, especially in the B2B telecom market, is number provisioning. This means that an operator can be allocated numbers, which it then makes available to another operator, so that the latter can offer them to its customers. The aim for this commercial player is then to lighten its technical and administrative constraints. But beware: making a number available does not transfer the allocation, the original operator remains the owner of its numbers, and since portability is a guaranteed right for the end customer, it remains obliged to ensure portability even if the number is made available to another operator. Consequently, in such a context, a portability request requires going up the whole number chain, which may result in failure. However, it should be remembered that portability is a right, in B2B as in B2C.

How does Arcep intend to tackle these potential bottlenecks?

Noting that customers could suffer from this situation, Arcep has decided to prohibit the cascading of numbers, i.e. successive provisioning between several operators (as part of the revision of the rules for managing the national numbering plan by decision n°21-0532 of 8 April 2021). And for good reason: until now, this system has been a major black mark against portability in the business market, making it more difficult to satisfy requests.

This means that new players wishing to offer telephony must now have their own number ranges and can no longer rely on those of other operators. This is a major change, especially in the B2B telecoms market, as many smaller players do not currently have their own numbers.

Since when has this obligation been in force?

The text dates from 2021. Nevertheless, Arcep has planned a gradual implementation, since it only concerns new number allocations/renewals/transfers. But today, the Authority is making no secret of its intention to extend the system to all numbers.

" The operator must be able to contribute to the identification of the end user.

Does this also mean that an operator is now obliged to have its own portability prefix and can therefore no longer use that of a portability operator?

No, at least not from a legal point of view. At this stage, Arcep does not require operators to use their own portability prefix in their applications. They can therefore always call on a service provider and use the latter's prefix. But this seems to be a bad strategy, as it unnecessarily weakens the process, with the risk of not satisfying the end customer when requesting portability. Today, obtaining a portability prefix requires sending a simple form to Arcep, and this is done online in a dematerialised way. Consequently, at present, using another player's prefix seems to represent an unnecessary risk.

Are there any other new constraints on operators regarding portability?

Yes, Arcep has also put an end to a tolerance concerning geographic numbers (starting with 01, 02, 03, 04 and 05). By their very nature, these numbers must remain attached to a restricted geographical area, such as a canton. In reality, however, operators have extended these numbers to a wider area (at the request of their customers), for example further afield in the département or region (especially in the Paris region), outside their home area. This practice, which was tolerated until now, is no longer tolerated. And this, even if Arcep intends to work on the "degeography" of these numbers in the long term.

Another point: in the event of a judicial requisition, the operator to whom a number is assigned must be able to help identify the end user. This means that the operator is obliged to provide the authorities who request it, within 24 to 48 hours, with the most precise identification elements possible relating to its numbers. This is obviously simpler in the case of a direct customer than in the case of a cascade provision.

" In the telecom market, quality of service is a collective responsibility

Does Arcep plan to tighten these rules?

This is likely, given that the authority has said that it is now looking closely at portability issues for businesses. For example, today, the provision of numbers is not formally prohibited, it is the cascading that is banned. But in the medium or long term, there is a strong chance that Arcep will ban the practice completely. Especially since the rules for number allocation have changed, with smaller bands now, so that all requests can be met.

Thus, it is in the interest of operators to arm themselves now, by requesting their number ranges and portability prefix, in order to anticipate potential future legal constraints. Of course, they can always call on intermediaries, aggregators or other service providers, but they must keep control of the resources they consider essential.

Generally speaking, the message that Arcep wants to get across is that, in the telecom market, quality of service is a collective responsibility. It is in everyone's interest that all customers are reachable. That is the primary objective of this regulation.

What is the risk for an operator who does not respect these rules?

There are two major impacts. The first is regulatory: in the event of non-compliance with the obligations, Arcep has the possibility of initiating a sanction procedure, which begins with public notices. And this can go very far: the authority can decide to interrupt the routing of an operator's communications, or even ban it from the telecommunications sector. This has never happened before, but the authority has this power. And if the cases of procedure remain rare for the moment, Arcep seems today determined to accentuate its vigilance, as illustrated by the administrative investigation opened against Ciel Telecom.

The second impact falls under the general law of commercial relations, especially in the B2B market. In concrete terms, if the customer believes that his supplier has not respected his contractual obligations, for example if he has not been reachable for a certain period of time because of unsuccessful portability, he can take the operator to court. And in the event of an unfavourable decision, the service provider is exposed to a heavy fine. The financial risk is thus higher than the regulatory risk.

Finally, any failure to comply with the obligation to contribute to the identification of the end user may result in sanctions up to and including criminal law. In minor cases, the fine is €3,750. But the public prosecutor's office can go as far as taking the offender to court, as it has just done for Twitter in a similar matter. The risk is of course minimal, but if it is a serious offence on the part of the end user, the operator is not immune from being charged with complicity.

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About Alexandre Archambault

A lawyer by training, Alexandre Archambault is a connoisseur of the telecommunications sector, having been in charge of regulatory affairs at Free from the outset until 2015. In this capacity, he participated in the creation of the APNF, an inter-operator body aiming to facilitate and streamline the portability process. Since 2016, he is a lawyer at the Paris Bar and advises digital companies.

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