15 Feb French Council of State misses an opportunity to promote better cooperation between ARCEP and Ministry in charge of consumer affairs

A decision of the Council of State has just ruled in favour of the French association for customer relations (AFRC) and the union of contact centre professionals (SP2C) who accused ARCEP of restricting direct sales calls using the predictive numbering to certain numbering ranges. The Council did not rule on the merits of the measure, but on the competence of ARCEP to take a measure which would fall under the ministers responsible for consumption and electronic communications. It is regrettable that the Council did not seize the opportunity to promote genuine cooperation between all the administrations concerned on such a complex and cross-cutting subject.

1        The cancelled sections of ARCEP decisions n ° 18-0881 and 19-0954

1.1       Cancelled sections related to the condition of territoriality of numbers

“Numbering plan – § 2.2.2. b) Territoriality condition

“When a French telephone number is used as a caller ID presented to the called party or as a sender identifier presented to the recipient of the message, calls or SMS / MMS messages must not be sent by end users located in outside French territory or be routed through an incoming international interconnection unless the operator using the number used as caller ID or message sender is able to guarantee, in particular to other operators, a call. by call and message by message that the conditions of use defined in 2.2.2a) are respected.

This provision applies to all categories of numbers except those for which an exemption is explicitly provided for under the particular or specific conditions of use defined below. In this case, the conditions of use (cf. 2.2.2a)) remain applicable to French numbers used as caller ID presented to the called party for calls or as identifier of the sender presented to the recipient of SMS / MMS issued by end users located outside of France. “

1.2       Cancelled sections applying to automated systems

Numbering plan – § 2.3.2. e) Protection against calls and messages sent by automated systems

” Automated call and SMS / MMS message sending systems “mean systems that automatically send calls or SMS / MMS to multiple recipients in accordance with the instructions established for this system.

As of August 1, 2019, territorialized numbers, with the exception of those for which an exemption is provided for in the specific conditions, cannot be used as a caller ID presented to the called party for calls or messages sent. by automated systems for calling and sending SMS / MMS messages.

This prohibition does not apply to:

• automated systems that send calls or messages to 5 different telephone numbers or less;
• automated systems for which the number of SMS / MMS messages sent is equal to or less than the number of messages received;
• automated systems for which the number of calls made is significantly lower than the number of calls received.

In this context, the Authority recommends that operators take the necessary measures, for example by implementing technical devices on their network and inserting clauses in their contracts, allowing them to interrupt the routing of calls and messages. SMS / MMS sent from their networks, passing through them or terminated on them which present one of the aforementioned territorialized numbers as caller identifier as soon as it appears, in particular with regard to the characteristics of the flow of calls, whether they are made by one or more automated systems for calling and sending SMS / MMS messages. When blocking calls, it is desirable for the operator to concomitantly inform the operator of the blocked calls.

In addition, the Authority invites operators to keep it regularly informed of the filtering actions they take following its recommendation, the volumes of calls filtered and their origin. “

Numbering plan – § 2.3.3. h) Protection against calls made by automated systems

“Notwithstanding the special conditions of paragraph 2.3.2 e), geographic numbers can be used as identifier of the caller presented to the called party for calls or messages sent by” automated call and dispatch systems of SMS / MMS messages “until December 31, 2020.”

Numbering plan – § 2.3.7. h) Protection against calls made by automated systems

“By way of derogation from the specific conditions of paragraph 2.3.2 e), These versatile numbers can be used as a caller ID presented to the called party for calls or messages sent by “automated SMS / MMS calling and sending systems” until December 31, 2020. “

2        The reasons for the cancellation

2.1       Cancellation of the provisions concerning automated calls

“14. If the aforementioned provisions of Articles L. 36-7 and L. 44 of the Postal and Electronic Communications Code empower ARCEP to establish the national numbering plan, which specifies the conditions of use of the allocated resources , in particular the type of services to which the use is reserved and the requirements necessary to ensure the proper use of these resources, the legislator has limited this competence by the provisions of Article L. 221-17 of the Consumer Code, which entrust only the ministers responsible for consumption and the digital economy with the task of defining by regulatory means the ranges of numbers that cannot be used as a call identifier by a professional who contacts a consumer in the context of a telephone canvassing .

16. These provisions apply to all calls using devices that include a call dialler that automatically dials telephone numbers. They are intended to prohibit professionals who use such devices to reach consumers from using certain number ranges as a call identifier. It follows from what was said in point 14 that they fell under the provisions of Article L. 221-17 of the Consumer Code, which have not been amended since the decision of July 24, 2018, the sole competence of the ministers responsible for consumption and the digital economy. “

2.2       Cancellation of provisions falling under the condition of territoriality

“21. It follows from the provisions cited in point 20, clarified by their preparatory work, that the obligation to prevent the transmission and interrupt the routing of calls and messages originating from territories located outside the European Union and presenting an identifier from the national numbering plan, set out by VI of Article L. 44 of the Postal and Electronic Communications Code, is intended to apply pending the implementation by the operators of electronic communications, an interoperable mechanism N ° 434538 – 9 – for authenticating calls, which will enable them to implement the authentication obligations set out in V of the same article from July 25, 2023. The legislator has understood, by these successive provisions, to set entirely the framework of the restrictions related to the origin of the calls and messages using a number of the national numbering plan as identifier of the caller, then that of the obligati ons of electronic communications operators applicable to the authentication of this identifier, by empowering ARCEP to take enforcement measures in this area only within the limits it has defined. Consequently, the applicants are justified in maintaining that the provisions of b) of paragraph 2.2.2 of appendix 1 to the decision of July 24, 2018, which prohibit the use for calls originating from the international, geographic numbers and non-authenticated multi-skilled workers, disregard the aforementioned provisions of article 44 of the postal and electronic communications code resulting from article 10 of the law of July 24, 2020 and to therefore request the cancellation of the refusal to repeal them. “

3        What will be the consequences of these cancellations?

3.1       Consequences on the obligations under the condition of territoriality

These consequences will be insignificant, given that the provisions in question had been taken over by the Naegelen law. ARCEP knew it would have to update its decision. It had deferred this update because of imperfections in the Naegelen law, recognized by the author of this law, through amendments to his own law filed by this deputy, in agreement with the government, ARCEP and the operators, amendments not yet voted for lack of having identified a legislative vehicle that could carry them without being qualified as legislative rider. On this point, the Council of State kicks in an open door.

3.2       Consequences on the obligations applying to automated systems

This is the heart of the Council of State’s ruling. According to the complainants, ARCEP’s definition of automated systems was too broad. What was wrongly targeted by ARCEP were predictive numbering systems, which consist, for a call centre, in calling prospects before an agent is available to speak to them, knowing that, statistically, between dialling the number and picking up the call by the called party, a call centre agent will be free in most cases.

One could argue that it is not predictive dialling that should be prohibited, but its excesses, especially when the called party waits more than three seconds after picking up a human being free on the calling side to speak to him, or, worse, when the system mistakes a human being for an answering machine and hangs up on him, rather than handing him over to a call centre agent. Today there are systems that make it possible to detect and therefore prevent such disturbances in predictive numbering systems, but the decision of the Council of State did not address this question, which is crucial for the well-being of the call recipients.

3.3       Consequences on cooperation between ARCEP and the DGCCRF

The Council of State did not go into the merits or not of the measure taken by ARCEP; he stuck to the distribution of powers between the administrations. On this point, the Council of State’s analysis was not complete. In fact, the Board ignored the 5th paragraph of II of Article L.32-1 of the Post and Electronic Communications Code, which states:

“II. – Within the framework of their respective attributions, the minister in charge of electronic communications and the regulatory authority for electronic communications, postal services and press distribution take, under objective and transparent conditions, reasonable and proportionate measures in order to achieve the following objectives:

(…)

5 ° Consumer protection, jointly with the Minister responsible for consumption, (…) ”

In addition, we may be surprised that the Council gives exclusive competence in this area to the Minister in charge of consumption and the Minister in charge of electronic communications, when Article L. 34-5 of the Postal and Electronic Communications Code, which ARCEP is responsible for to enforce, constitutes a provision applying to users of automated systems: “Direct prospecting by means of an automated electronic communications system within the meaning of 6 ° of Article L. 32, by fax or by electronic mail is prohibited when using the contact details of a natural person, subscriber or user, who has not previously expressed their prior consent to receive direct prospecting by this means. “

Finally, while the European Council proposes, in its version of the draft European e-privacy regulation, that: “Member States may require natural or legal person using electronic communications services for the purposes of placing direct marketing calls to present a specific code or prefix identifying the fact that the call is a direct marketing call ”, if this project were adopted and France wanted to follow this path, would we imagine that the decision in question would be taken under“ the sole competence of the ministers responsible for consumption and the digital economy ”, that is to say without referring to ARCEP which manages the numbering plan?

3.4       What is a measure taken jointly by several administrations?

For several central government officials questioned on this subject, a joint measure is only signed by one administration, provided that the latter has submitted its project by mail to the other administrations concerned. This minimal version of the joint decision is opposed by the point of view of the Administrative Court of Appeal of Nancy (3rd chamber – formation at 3, 12 November 2009, 09NC00398), which writes that: “contrary to what the Minister says, these provisions do not simply imply that each of these authorities consults the other when taking a decision in this capacity, but that the first president of the court of appeal and the public prosecutor at the court of appeal jointly take these decisions, this joint competence being attested by their personal signature, except for them to delegate it to the same magistrate or official of category A; “

4        Conclusion

The fight against illegal or unnecessarily intrusive canvassing calls requires an enhanced cooperation between all the private and public actors concerned. On the public side, genuinely joint decisions between the minister in charge of consumer affairs, the minister in charge of electronic communications and ARCEP would be more effective than the rigid separation of roles advocated by the Council of State.

________________