January 9, 2014

Paris Court of Appeal dismisses appeal by Cogent

In a significant victory for Orange, the Paris Court of Appeal rejected an appeal by Internet transit provider Cogent in a competition matter dating back three years. In 2011, Cogent filed a complaint before the French Competition Authority claiming that Orange had abused its dominant position in the Internet interconnection market (which allows content providers to deliver data to Internet users). Cogent, which was acting as a transit provider notably for Megaupload at that time, claimed it could send an unlimited volume of data to Orange’s network without providing any financial compensation to Orange. The networks of Cogent and Orange are interconnected under a peering agreement through which data may be freely exchanged within the limit of a pre-established ratio. Since Cogent significantly exceeded this ratio, Orange refused to provide the free capacity increases requested by Cogent.

The French Competition Authority rejected all of Cogent’s allegations, finding that requesting payment in the case of a highly asymmetric traffic exchange does not in itself constitute an anti-competitive practice. However, the French Competition Authority had accepted a transparency commitment subscribed by Orange in order to clarify the relationship between Orange’s domestic network and its transit activity. In its appeal before the Paris Court of Appeal, Cogent challenged both the principle of resorting to a commitment procedure and the commitment itself formalized by the French Competition Authority. The Paris Court of Appeal rejected all of Cogent’s claims, confirming the findings of the French Competition Authority. The Willkie team included partner Jacques-Philippe Gunther, special European counsel Faustine Viala and associate Mathilde Saltiel.

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