Decree of August 25, 2011 on support for DTT diffusion of local channels in the French overseas territories

Decree no. 2011-1007 of August 25, 2011 on aid for the digital terrestrial broadcasting of free-to-air local television services in the French overseas departments and territories.

Target audience: local channels in overseas France; viewers in overseas France.
Subject: Implementation of a digital broadcasting method for local overseas France channels.
Entry into force: the text is effective from the day following its publication.
Notice: this decree specifies the calculation methods and procedures for granting degressive aid to publishers of local free-to-air terrestrial television channels in overseas France, when their operating revenue is less than five million euros excluding tax.
References: this decree is issued to enforce article 173 of the aforementioned law of December 29, 2010.

Le Premier ministre,
On the report of the Minister of the Interior, Overseas France, Local Authorities and Immigration and the Minister of Culture and Communication,
Having regard to Act no. 86-1067 of September 30, 1986, as amended, on freedom of communication, in particular articles 42-1, 42-3, 96 and 108;
Having regard to Law no. 2000-321 of April 12, 2000 relative to the rights of citizens in their relations with administrations, in particular articles 10 and 21;
Having regard to French Finance Act no. 2010-1657 of December 29, 2010, in particular article 173;
Having regard to Decree no. 97-1206 of December 19, 1997, for the application to all ministers of 1° of Article 2 of Decree no. 97-34 of January 15, 1997, on the deconcentration of individual administrative decisions;
Having regard to the opinion of the Government of New Caledonia dated April 26, 2011;
Vu l'avis du conseil régional de La Réunion en date du 26 avril 2011 ;
Having regard to the opinion of the French Superior Audiovisual Council dated June 14, 2011;
Vu la demande d'avis du gouvernement de la Polynésie française en date du 28 mars 2011 ;
Having regard to the submission of a case before the court by the Regional Council of Guadeloupe dated March 29, 2011;
Having regard to the submission of a case before the court by the Conseil régional de la Guyane dated March 29, 2011;
Having regard to the submission of a case before the court by the Conseil régional de la Martinique dated March 29, 2011;
Having regard to the submission of a case before the court by the Conseil général de la Guadeloupe dated March 29, 2011;
Having regard to the submission of a case before the court by the General Council of French Guiana dated March 29, 2011;
Having regard to the submission of a case before the court by the General Council of Martinique dated March 29, 2011;
Having regard to the submission of a case before the court by the General Council of La Réunion dated March 30, 2011;
Having regard to the submission of a case before the court by the General Council of Mayotte, with effect from March 30, 2011;
Having regard to the submission of a case before the court by the Conseil territorial de Saint-Barthélemy dated March 28, 2011;
Having regard to the submission of a case before the court by the Conseil territorial de Saint-Martin dated March 28, 2011;
Having regard to the submission of a case before the court by the Conseil territorial de Saint-Pierre-et-Miquelon dated March 28, 2011;
The Conseil d'Etat (interior section) has been heard,

Decree:

Article 1
This decree applies to local television services shown by terrestrial broadcasting method in digital mode, as mentioned in article 173 of the aforementioned law of December 29, 2010.
For the purposes of this decree, the following definitions shall apply:
- broadcasting costs" means the sums paid for digital terrestrial broadcasting to any person ensuring the broadcasting of the television service, to the exclusion of any other charges invoiced by that person;
- operating income": income from the normal and current operation of the service, including in particular subsidies received from the State and local authorities other than those paid under the present decree.

Article 2
The aid instituted by article 173 of the aforementioned law of December 29, 2010 is allocated annually by the Minister for overseas France in accordance with the following terms and conditions:
1° In 2011, it covers 90% of broadcasting costs, including all taxes, by terrestrial hertzian channel in digital mode, incurred by the local free-to-air television service editor from the start of its digital broadcasting, up to a maximum of 100,000 euros or 11,933,000 CFP francs;
2° In 2012, it covers 70% of the broadcasting costs, all taxes included, incurred by the local free-to-air television service editor, up to a maximum of 60,000 euros or 7,159,800 CFP francs;
3° In 2013, it covers 30% of the broadcasting costs, including all taxes, incurred by the publisher of local free-to-air television services, up to a maximum of 40,000 euros or 4,773,200 CFP francs.

Article 3
I. Requests for assistance must be made each year by the local free-to-air television service editor, before September 1st for 2011 and before June 1st for 2012 and 2013.
It must be sent to the Minister for overseas France, together with the income statement and balance sheet for the previous year, certified as true and fair by a chartered accountant, and details of the television service editor's forecast digital terrestrial broadcasting costs.
II. Requests for aid in respect of 2012 and 2013 must be accompanied by the amount of the digital terrestrial broadcasting costs incurred by the service editor over the previous financial year, the sincerity and regularity of which must be certified by a chartered accountant.
Before June 1, 2014, the service editor must send the amount of the digital terrestrial broadcasting costs incurred in 2013, certified by a certified public accountant.
III. The Minister in charge of overseas France may, by decree, add to the list of documents required to demand or regularize aid.

Article 4
Within two months of the date of receipt of the demand, the Minister for overseas France will inform the applicant that the application is complete, or will request the production of any missing documents. In this case, the deadline is suspended.
In the absence of a response from the Minister for overseas France by the end of the two-month period, the application is deemed to be complete.

Article 5
Any request for assistance which has not been granted within four months of the date on which the application is complete is implicitly rejected.

Article 6
The amount of aid is adjusted on the basis of documentary evidence of the broadcasting costs actually incurred by the publisher. Depending on the case, this may result in the payment of a supplement or the repayment of any overpayment.

Article 7
In the event of suspension of publication or diffusion of the program in application of 1° of article 42-1 of the aforementioned law of September 30, 1986, or withdrawal of authorization in application of 4° of article 42-1 or article 42-3 of the same law, or in the event of voluntary cessation of activity, the aid allocated is equal to that which the publisher would have received for the year in the absence of suspension or interruption, calculated in proportion to the duration of effective diffusion of the program during the year concerned.

Article 8
When the operating income of a subsidized local free-to-air television service editor exceeds the ceiling defined in I of article 173 of the aforementioned law of December 29, 2010 during the financial year for which the subsidy was granted, the subsidy is reimbursed in full.

Article 9
Any department that finds itself in one of the situations described in Articles 7 or 8 must inform the Minister for overseas France within the following deadlines:
1° In the event of suspension or withdrawal of authorization, or cessation of activity, the deadline is fifteen days;
2° If the operating income ceiling stipulated in I of article 173 of the aforementioned law of December 29, 2010 is exceeded, the deadline expires on the last day of the fourth month following the end of the financial year.

Article 10
Any service that finds itself in one of the situations provided for in articles 7 or 8 shall reimburse the aid unduly received within two months of the expiry of the deadlines mentioned in article 9, unless an extension has been granted by the Minister responsible for overseas France.

Article 11
The present decree is applicable in New Caledonia, French Polynesia and Wallis and Futuna.

Article 12
The Minister of the Interior, Overseas France, Territorial Communities and Immigration, the Minister of the Budget, Public Accounts and State Reform, Government Spokesperson, the Minister of Culture and Communication and the Minister attached to the Minister of the Interior, Overseas France, Territorial Communities and Immigration, responsible for Overseas France, are each responsible for the execution of this decree, which will be published in the Journal officiel de la République française.