Avis du 26 mars 2002 sur les cahiers des missions et des charges des chaînes de France Télévision (Opinion of March 26, 2002 on the terms of reference of France Télévision channels)

Requested to give its opinion, in application of article 48 of law no. 86-1067 of September 30, 1986, as amended, on freedom of communication, on five draft decrees, three of which modify the terms of reference of France 2, France 3, Télévision du savoir, de la formation et de l'emploi (hereinafter referred to as La Cinquième), and two of which approve the terms of reference for "La chaîne de rerun" and "La chaîne d'information continue", the French Superior Audiovisual Council, after deliberation, issues the following opinion:
Based on the constitutional principles governing freedom of communication and on the Amsterdam Protocol of June 1997, and in accordance with the missions entrusted to it, in article 1, by the amended law of September 30, 1986, the French Superior Audiovisual Council has been guided, in formulating this opinion, by the concern to reconcile the specific missions of public-sector television organizations and equal treatment between the different operators using the same diffusion medium in a competitive market. The Amsterdam Protocol affirmed that the role of public broadcasting organizations was directly linked to the democratic, social and cultural needs of each society, and to the need to preserve plurality in the media. It also emphasized that, by offering a wide range of programs, these organizations should address society as a whole and reach a wide audience, without their funding distorting the conditions of trade and competition. This managerial framework was clarified by the European Commission's Communication of November 15, 2001 on the application of State aid rules to public service radio broadcasting.

Comments common to all France Télévision companies

With regard to the draft decrees relating to the three existing public channels, the Conseil notes with satisfaction the objective of better defining for each of them a specific and complementary role within the France Télévision group. This concern for differentiation, which must be pursued, should enable them to reach a wider audience. It should not, however, result in a reduction in France Télévision's overall commitment to certain programs, particularly educational, discovery or programmes for younger viewers.
Beyond this objective, these projects raise a number of observations on the part of the Conseil:

• Articulation between specifications and contracts of objectives and means

Together with the recently signed contract of objectives and means, the terms of reference constitute the first new elements defining the missions of public service broadcasting companies since the European Commission demanded, in its communication of November 15 2001 on the application of State aid rules to public service broadcasting, a precise official definition of the public service remit, which must be monitored by an independent body. Some of the obligations of public service broadcasters are set out in their specifications, on which the French Superior Audiovisual Council issues an upstream opinion, and ensures that they are complied with. Other obligations are set out in contracts of objectives and means, a legal act which only binds the company and its shareholder, and which is not subject to the Conseil's opinion or to sanction by its control. The Conseil questions the compatibility of the reference to contracts of objectives and means with paragraph 42 of the Commission's communication.
It would also like to see greater clarity in the criteria used to breakdown objectives between the specifications and the contract of objectives and means. For example, commitments concerning financial investment by channels in certain programme types are referred to the contract of objectives and means. However, article 10 of decree n°2001-609, as amended, concerning the contribution of analog terrestrial channels to audiovisual and cinematographic production, makes provision for the specifications to lay down specific obligations for one or more genres of audiovisual work, in particular drama, documentaries, animation and live performance, taking into account the nature of the programming.
The Conseil demands that, in order to comply with the decree and ensure effective control, these obligations be included in the specifications.
Should the government nevertheless maintain the proposed scheme, the Council would consider that the reference of these obligations to the contract of objectives and means in the specifications gives it an indirect power to ensure that they are properly carried out. Consequently, it would only be able to exercise this power if it were officially informed of the contract and the annual evaluation report drawn up by an independent auditor in application of article 4.
More generally, the Conseil considers that mentioning obligations linked to France Télévision's educational, cultural and social mission in the objectives and means contract alone would contradict article 48 of the amended 1986 law, which stipulates that these obligations are included in the specifications of national program companies. This would be tantamount to relinquishing part of the Conseil's supervisory powers over France Télévision, whose independence it is charged with guaranteeing under article 1 of the law.
The consequence of such a streaming would be to subject the public audiovisuel service to less control by the Conseil than private broadcasters.

• Harmonization of the objectives of the preamble and the detailed provisions in the articles of the mission statement and specifications

The Conseil would like to see greater harmonization between the objectives of the preamble and the provisions set out in the articles. It regrets, for example, that the objective of media education made provision for in the preamble has not been given concrete expression in an article of the draft terms of reference for France 2, France 3 and La Cinquième.
Harmonizing the principles set out in the preambles to the specifications and the body of these texts is also necessary in the case of the two new television services shown in digital mode.
In particular, the cultural vocation of "La chaîne de rerdiffusion", repeatedly set out in the preamble to its mission statement, should be more clearly affirmed in the text, and given concrete expression.

• The database of programs, services and messages

To ensure the increase in program supply brought about by the creation of new national and regional digital channels, 2° of the preamble refers to the pooling in a database of programs, services or messages of any kind that each of the public companies puts on air, and which are intended to be used indiscriminately by all France Télévision companies. The Conseil questions the compatibility of this scheme with the provisions on the independence of audiovisuel production introduced by decree no. 2001-609 of July 9, 2001, as amended.

• General remarks

The Council would also like to see certain clarifications or editorial changes made to these drafts:

- Editorial responsibility
The addition to articles 13 and 14 of France 2's draft mission statement, and articles 13 and 15 of France 3's draft mission statement, which makes provision for the broadcaster to be relieved of editorial responsibility for programs expressing the views of political parties and trade unions, contradicts the general principle of the broadcaster's editorial responsibility, which is laid down in the law and from which the broadcaster cannot derogate.

- Audiovisuel production
At a time when decree no. 2001-609 of July 9, 2001, as amended, has strengthened the criteria of independence in relation to audiovisual works, it is paradoxical that more restrictive criteria should govern the dependent part of public channel commissions. Thus, the Conseil considers that VI of articles 22 and 23 of the draft specifications for France 2 and France 3, by limiting the duration of rights within orders already qualified as dependent, creates additional complexity and rigidity likely to put public channels at a competitive disadvantage in the area of rights acquisition. Furthermore, in the case of France 2, the maximum duration of exclusive rights that the channel could acquire for works other than drama and documentaries would be limited to three years, i.e. a shorter duration than that which the channel could obtain for works qualified as independent, which could, taking into account the exercise of options, reach 3 and a half years. The Council is therefore in favor of deleting this measure.

With regard to the commitment to programs for younger viewers, the Conseil approves the principle of complementarity in the supply for younger viewers proposed by each of the public companies, but considers that this must not be accompanied by a drop in France Télévision's investments. Extending this obligation to invest not only in drama and animation for young people, but in all works for young people, particularly magazines, should enable us to offer a more diversified range of programming. Its hourly volume should nevertheless be re-evaluated to take account of the broader scope of works included in this obligation.

The Conseil recalls that the obligation set by the Boards of Directors of France 2 and France 3 is much more flexible than those set for TF1 and M6, whose agreements make provision for an investment obligation based exclusively on previously unseen animated works, according to an investment calculated on the basis of their reference sales (i.e. 1% of M6's sales and 0.6% of TF1's sales).

In the interests of equal treatment with private-sector channels, he would have liked to see the obligation set out in article 28 of France 2's draft terms of reference and article 30 of France 3's draft terms of reference aligned with that of private-sector channels.

The wording of this obligation should also be modified in line with the provisions of Decree no. 2001-609, as amended, on independence, and should no longer refer solely to co-productions, but also to works aimed at young people and co-financed by public broadcasters.

Finally, the Conseil considers that the provision ensuring that 0.2% of each public company's sales will be devoted to the distribution of cinematographic works should not be included in V of article 22 of France 2's and 23 of France 3's draft terms of reference, as its insertion within an article devoted to audiovisual production could create confusion. The Conseil recommends that this provision be the subject of a separate article.

- Children and advertising
The Conseil would like to see public broadcasters' mission statements and specifications invite them to study, trial and implement a reduction in the presence of advertising in programs aimed at youngsters and in the immediate environment of these programs.

- Digital diffusion
In article 1 of the draft specifications for France 2, France 3 and La Cinquième, the Conseil would like the following phrase to be added after "in digital mode by terrestrial hertzian channel", in order to make full use of the possibilities supplied by the digital broadcasting method in terms of image and sound quality: "taking care to exploit all the possibilities offered by this technology, in terms of format and image and sound quality".

- Relations with INA
With regard to article 44 of France 2's draft mission statement, article 46 of France 3's draft mission statement, and article 32 of La Cinquième's draft mission statement, which deal with the public channels' relations with the INA, the Council proposes that the exact provisions of the law be used, and that "modalities of exploitation" be used instead of "conditions of exploitation", and that "priority right of use" be used instead of "priority access".
Furthermore, the use of the term "arbitration" at the end of these articles seems ambiguous, insofar as it refers to an arbitration procedure by the trusteeship, which could lead to confusion with the possibility of recourse to the arbitration procedure under private law, a provision introduced by the law of August 1, 2000.
These remarks also apply to the terms of reference of the new France Télévision Group companies showing in digital mode.

- Preservation of programs
With regard to program retention, as set out in articles 56 of the draft specifications for France 2, 58 of those for France 3, 35 of those for "La chaîne de rerffusion" and 33 of those for "La chaîne d'information continue", the Council recommends that this period be extended to three months, in order to take account of the new scheme for the right of reply, introduced in 2000 in article 6 of law n°82-652 of July 29 1982, following the example of what has been added to the private channel agreements renegotiated by the Conseil in 2001. In the case of La Cinquième, a comparable provision should be included in the specifications.

Comments specific to France 3 and La Cinquième

• France 3 digital regional channels

The decision to include regional digital channels in France 3's specifications raises the question of the application of the obligations of the analog France 3 service, in particular those relating to messages of the "grande cause nationale" or the broadcasting of debates of territorial assemblies, to each of the regional digital TV channels. It should be made clear whether these obligations apply solely to the France 3 channel, or to all digital services governed by these specifications.
Article 37-6 of France 3's draft specifications stipulates that "the program of each regional digital television service may be enriched by opting out on regional and local transmitters". The Conseil is in favor of developing a local television service that will better meet the expectations of the public at regional and local level. In the interests of plurality, it considers it necessary to strike a balance between the public and private sectors.
The allocation of frequencies to France 3 for opting out on regional and local transmitters must therefore be compatible with the necessary objective of plurality, which implies the development of local television stations, particularly associative ones.
Article 37-1 makes provision for these regional digital televisions to be shown on all networks. This wording suggests that these future channels could be shown on cable and satellite ahead of their launch on digital terrestrial television. In the case of future rerun and all-news channels, a different wording has been adopted in Article 1, linking diffusion on digital terrestrial television with full and simultaneous coverage on cable and satellite. In the case of France 3's regional digital channel projects, the Council questions the appropriateness of this prior diffusion on media other than digital terrestrial.
Article 37-8 makes provision for each regional digital television channel to federate the initiatives of various local players with a view to setting up partnerships. In the interests of balance between the various players, the Council recommends using the verb "supports" rather than "federates".

• The Fifth

The Board would like to see its specifications better reflect the integration of this company into the France Télévision group, as decided by the law of August 2000. This integration includes :

- Company designation
In accordance with the law of August 2000, the terms of reference change the name of Télévision du savoir, de la formation et de l'emploi to La Cinquième. However, in order to better express its membership of the France Télévision group, the Board would like to see every effort made to name it France 5.

- Setting a volume of subtitled programmes
For other public broadcasters, the terms of reference set a minimum volume of programming, which the Board of Directors may increase. La Cinquième's draft mission statement does not specify a minimum volume of programs to be subtitled. It is up to the Board of Directors to set this, which it has never done. The Board demands that La Cinquième's mission statement be aligned with that of other public channels.

- Harmonization of control provisions
In order to provide the Conseil with the necessary means to ensure that La Cinquième fulfills its obligations, an article on the means for Conseil control should be introduced, along the lines of article 58 of France 3's mission statement and article 56 of France 2's mission statement.

Comments specific to new digital services

The Conseil recalls that the introduction of new public-sector digital television services will have to comply with the recommendations made by the European Commission in its communication of November 15, 2001, in particular as regards the official definition of the public service remit and compliance with the obligations of transparency and proportionality relating to public funding.

• Our missions

The ethical obligations applicable to these two new companies, in particular those relating to the rights of the individual and the honesty of information and programs, are insufficient. The Council proposes that they be aligned with those applicable to authorized services.

- The rerun channel

Purpose of the company
The Council questions the exact purpose and ambition of this service, which is not clear from the draft specifications:
- the preamble to these specifications seems to define the service as a rerun of cultural programs;
- However, the preamble also states that "the rerun channel" "offers the widest possible range of television programs, without excluding any particular programme type", including "entertainment and leisure programs". The body of the text makes provision for the retransmission of sporting events (article 15);
- finally, the preamble and article 13 of the terms of reference for this service, dedicated as its name suggests to the rerun of programs, also make provision for the scheduling of previously unseen programs.
The Council considers that, by seeking to achieve several objectives at once, the draft specifications do not, as they stand, provide the company with a clear and coherent editorial identity. In any case, it considers that the phrase "without prohibiting any genre" could legitimize possible excesses.

Editorial responsibility
The wording of article 14 of the draft specifications, which refers to the company's responsibility for the selection of programs it gathers from existing public-sector companies, only partially meets the legislative obligation of editorial responsibility to which all television services are subject. The Conseil would like the specifications for "La chaîne de rerun" to make express provision for the company's responsibility for the content of the programs it programs.

Interactive services
As made provision for in article 18 of the draft specifications for "La chaîne de rerun", the Conseil accepts that the company's interactive services may be mentioned on-air, in line with its notice of March 5, 2002 concerning reference to Audiotel or Télétel services.
On the other hand, the "promotion" of "products" that complement and extend the television service's programs may not be compatible with current advertising regulations, in particular those concerning surreptitious advertising.

Relations with INA
The Council notes that the title of chapter V of the draft specifications ("Provisions relating to agreements") is not in keeping with its content, which is devoted to the relations the company must maintain with the INA.

-The all-news channel

Media information plurality
The preamble to the draft terms of reference for "La chaîne d'information continue" refers to the creation of a TV channel that "preserves" and strengthens media plurality. In the Council's view, the use of the term "preserves" is unsatisfactory in that it assumes that plurality of information in the media is currently under threat. This list should therefore be deleted.

• The means

- Program pooling
The Council notes the close relationship that the new companies will maintain with the existing companies of the France Télévision group. "La chaîne d'information continue" is thus authorized to show program elements previously proposed by France 2, France 3 and La Cinquième, and to access their news images, and conversely to provide them with any document (article 17). The "rerun channel", in accordance with articles 13 and 17 of its draft specifications, could show any program of its choice pre-programmed by France 2, France 3, La Cinquième and Arte-France. In this manager, the Conseil would like the interests of all rights holders to be strictly preserved.

- Advertising
The Conseil notes that the maximum duration of advertising applicable to these services is aligned with that of France 2 and France 3. It questions the risk of the new public-sector channels becoming too dependent on advertising.
In view of this option, the Conseil, concerned with the plurality of digital terrestrial television development, questions the capacity of the advertising market, within its current limits, to generate sufficient resources to reconcile the projects developed by France Télévision and future private terrestrial services, particularly local ones.

(The names France Télévision, France 2, France 3, La Cinquième are those used to designate the companies. Not to be confused with the recently adopted brand names: France Télévisions, France 5).