French Superior Audiovisual Council opinion on the draft decree amending decree n°2002-140 on the regime of cable and satellite channels

The French Superior Audiovisual Council has been asked to give its opinion on a draft decree amending decree no. 2002-140 of February 4, 2002, laying down the rules applicable to the various categories of radio broadcasting and television services distributed by cable or shown by satellite, pursuant to law no. 86-1067 of September 30, 1986, as amended, on freedom of communication. After deliberation, the Council formulates the following opinion:

I - General comments

Before examining the proposed schemes, the Conseil would like to make the following observations:

1. The Council supports the general thrust of the text, which reduces the obligations on channels distributed by cable or shown by satellite.
It welcomes the fact that the specific nature of the cable and satellite sectors and the economic difficulties currently faced by service editors are better taken into account.

2. Nevertheless, it recalls that in its opinions n°2001-4, 2001-8 and 2001-10, it considered that "the harmonization of the various legal regimes must be accompanied by a simplification of these regimes, which have become rigid, cumbersome and complex".
It therefore regrets that the draft decree does not simplify the scheme, by repeatedly making exceptions to the general rule, thereby multiplying the number of applicable regimes.
He believes that this complexity will make it more difficult to implement and monitor some of the schemes. Moreover, it is likely to lead to the development of practices that circumvent obligations.
He believes that giving the regulator greater room for negotiation would enable it to take better account of the particularities of the sector and of each company, without making the regulations too rigid. In its opinion n°2001-12, it recommended that the regulator be given the power to "negotiate with editors a specific commitment to the production of previously unreleased European or original French-language audiovisual works, in return for a reduction in the rate of film and audiovisual production obligations".

II - Opinion on the proposed schemes

The Council makes the following comments on the various measures proposed by the draft amending decree:

1. Possibility of valorizing expenditure devoted to safeguarding heritage works (article 2)

The Council is in favor of the spirit of this measure, which entails the disappearance of a specific regime for heritage channels alone.

Nevertheless, it points out that the definition of "expenditure on the preservation, restoration and enhancement of audiovisual and cinematographic heritage works", which appears in paragraph 2 of II of article 11 of the "cable" decree, includes expenditure on the financing of on-set programs devoted to audiovisual and cinematographic heritage works and their history.
Given that it would apply to all cable and satellite channels without exception, he questions the conformity of this extensive concept with the spirit of article 33, 6° of law no. 86-1067 of September 30, 1986, as amended. He also regrets that it allows channels to include programs that are not works in their production quota.
Consequently, he would like to see the extension to all channels of the possibility of adding value to expenditure devoted to safeguarding heritage works, accompanied by the deletion of 2° of II of article 11.

2. Increased deductions for new productions during the ramp-up period (article 4)

With a view to ensuring program diversity and the development of audiovisual creation, the Conseil, in its opinions n°2001-4 and 2001-12, called for the introduction of a scheme to guarantee, for all channels, by agreement, a minimum annual volume of orders for new works.
Article 13 of decree n°2002-140 entrusts the Conseil with the task of setting, in the agreements, the minimum share of the obligation that the publisher must devote to expenditure on the production of previously unpublished audiovisual works, and article 16 entrusts it with the task of setting, in the agreements, the terms and conditions for the increase in expenditure.

The draft amending decree makes provision for sums invested in this type of production to be counted at double their value during the ramp-up period.
The Conseil understands the regulatory authority's intention, which is to encourage channels to invest in the very heart of production, i.e. original productions. However, it questions the relevance of this measure to the objective pursued.
On the one hand, current schemes could achieve the same result. In fact, with a constant obligation, total real investment in production will fall without any increase in the proportion of unreleased titles, the latter being counted at double their value. In the Conseil's view, the current arrangements, which leave the determination of the proportion of unreleased works and the ramp-up scheme to be determined by agreement, enable it to ensure a satisfactory level of investment in fresh production during the ramp-up period, which is the only one affected by the change.
On the other hand, it considers that this amendment would make the actual investment made by cable and satellite channels in the production of audiovisual works more opaque. As a result of the optional regime already made provision for in III of Article 11, there would now be three types of expenditure for these channels: one counted for half its amount, another for its nominal amount and the third for double. The consequence would be a total discrepancy for several years between the amount declared and the amount actually invested by the channels in production.
Finally, under the provisions of the ramp-up, a sudden discontinuity would appear, running counter to the very idea of the ramp-up, as new production expenditure would be deducted for its nominal amount.

The Conseil would therefore like this measure to be revoked from the amending decree, since the desired flexibility can be obtained through an agreement negotiated between the Conseil and the service editor.

3. More flexible diffusion conditions for the definition of independence (article 5)

In its opinion n°2001-12 on the draft "cable" decree, the Conseil regretted the limitation on the number of diffusions imposed on channels whose economy is often based on reruns. It feared that this constraint would dissuade these channels from investing in new production, and that they would fulfill their obligation to independent production solely through the purchase of rights.

He is therefore in favor of increasing the number of diffusions in the definition of independence in the case of pre-purchases, and of broadening the notion of multi-broadcasting. Cable and satellite channels will thus be encouraged to direct their investments towards pre-purchases, i.e. towards fresh production, which is in line with its concern to ensure program diversity and the development of audiovisual creation.

However, he questions the relevance of the distinction made between the drama and documentary schemes, which makes the scheme more complex by creating three distinct schemes when there are currently only two (animation on the one hand, drama and documentary on the other).

4. Possibility of a 5-year ramp-up for all channels (articles 6 and 8).

The Conseil has always been in favor of the possibility, under the terms of an agreement, of granting increments that give it additional negotiating leeway with the channels.
In view of the fact that the distinction that previously existed between services signed up before and after January 1, 2000 does not necessarily correspond to the economic reality of cable and satellite channels, the Conseil is in favor of extending to all channels the possibility of benefiting from a five-year ramp-up.

However, it notes an imbalance between audiovisual and cinematic production. Article 8 of the draft decree amending paragraph 1 of article 36 maintains the two-year ramp-up for services that have signed an agreement for more than three years to meet their cinematic production obligation.

Furthermore, the Council notes that the new wording of paragraph 2 of article 36 no longer sets the starting point for the ramp-up period for audiovisual production quotas. In its view, this lack of precision could lead to difficulties of interpretation.
For this reason, he would like the amending decree to make provision for a maximum ramp-up period of five years from the decree's entry into force (January 1, 2003) for existing services, and from the signing of their agreement for new services.

5. Application of diffusion quotas only to the part of the service shown in a European language (article 7)

The Council is in favor of an amendment that would allow services broadcast in a non-European language to escape the diffusion quotas for European works and original EOF.
The addition of a reference to articles 7 and 13 of the decree of January 17, 1990 in article 22 opens up this possibility.

However, the Conseil would like this article to list only the non-European languages included in the service agreement. Indeed, it fears that the current wording could be invoked by French-speaking channels when they show programs in their original version.
It therefore considers it preferable for service editors to be able to make use of this scheme only when their agreements explicitly make provision for the broadcast of non-European languages, and for programs that are not subtitled or dubbed specifically.

III - Final comments

Finally, the Council summons the government's attention to the fact that certain services distributed by cable or shown by satellite are only partly a simultaneous retransmission of an analog terrestrial service or a future digital terrestrial service. This currently applies to La Cinquième, and, when digital terrestrial TV is launched, to channels sharing the same channel.
The Conseil believes that these service editors should be subject to a single text for all their programming, since it would be tricky to coordinate different regimes for certain obligations such as production quotas.
It would therefore be useful for the amending decree to include schemes to expressly exclude these service editors from its scope, so that their entire operation is subject to the analog or digital terrestrial regime.