Avis du French Superior Audiovisual Council relatif à un projet de décret pris pour l'application des articles 43-8, 43-9 et 43-10 de la loi n° 86-1067 du 30 septembre 1986

Avis n° 2010-21 du 14 septembre 2010 relatif à un projet de décret pris pour l'application des articles 43-8, 43-9 et 43-10 de la loi n° 86-1067 du 30 septembre 1986 modifiée relative à la liberté de communication

In accordance with the provisions of article 9 of law no. 86-1067 of September 30, 1986, as amended, on freedom of communication, the French Superior Audiovisual Council has been seized of a draft decree implementing articles 43-8, 43-9 and 43-10 of this law, and has issued a favorable opinion.

With regard to on-demand audiovisual media services (SMAD) in particular, the new text will enable the Conseil to implement the necessary measures to prevent some of them from seeking to establish themselves in another European Union member state with the sole aim of escaping French regulations, which they might consider more restrictive. In the summary of the consultation adopted on March 2, 2010, on the deployment of services governed by article 30-5 of the law of September 30, 1986, on data associated with digital terrestrial television and radio services, and on the regulation of SMADs, the Board had already stated that it would ensure that all such services, when they fall within the competence of France, are subject to its regulation, so as to ensure fair conditions of competition between the various players.

The Conseil is very much in favor of including SMADs within the scope of the "anti-circumvention" provisions, in line with the legislator's desire for a single legal manager for television services and SMADs, even if these provisions will undoubtedly be less easy to implement than for television services, since they will require active cooperation on the part of the European Commission and the regulatory authorities of other European states.

With regard to the schemes applicable to the provisional suspension of retransmission of on-demand audiovisual media services and television services, it would appear clearer to the Council:

- to use, in articles 1, 3 and 5 of the draft legislation, the word "suspension", which appears in articles 43-8 and 43-9 of the aforementioned September 30, 1986 law, instead of the word "entrave";

- to add, at the end of the first sentence of article 5 of the draft decree, the words: "responsible for its implementation".

This notice will be published in the Journal officiel de la République française.

Paris, September 14th 2010.

For the French Superior Audiovisual Council :
Le président,
M. Boyon