Notice of July 11, 2005 on the draft decree on the service distributor regime
Notice no. 2005-7 of July 11, 2005 on the draft decree implementing articles 30-2, 34 and 34-2 of law no. 86-1067 of September 30, 1986
The French Superior Audiovisual Council has been asked to give its opinion on a draft decree implementing articles 30-2, 34 and 34-2 of law no. 86-1067 of September 30, 1986, and has made the following observations.
I - DTT commercial distributor regime
Article 3 of the draft decree sets out the list of items that must be included in the declaration; these items concern the company (corporate form, name or business name, registered office), as well as the services distributed and the structure of the supply.
The French Superior Audiovisual Council believes it would be useful for the declaration file to include at least one letter of intent to enter into a distribution agreement from a service editor authorized for DTT pay-TV.
It also summons the government's attention to the importance of ensuring that this declaration includes the elements taken or envisaged to abide by the provisions of article 30-3 of the amended law of September 30, 1986, concerning the interoperability of decoders.
Article 4 makes provision for the acknowledgement of receipt by registered mail to be considered as a receipt for the declaration.
Although the French Superior Audiovisual Council understands the government's desire to reduce the time required for the declaration procedure as much as possible, it considers that this system may give rise to difficulties linked to the limits of the evidential value of the acknowledgement of receipt, in the absence of a legal manager defining the characteristics of registered mail used in administrative and jurisdictional proceedings (article L.3-4 of the French Post and Electronic Communications Code refers to a Conseil d'Etat decree which has not yet been adopted).
In addition, the Council notes that this procedure does not seem to be in line with the provisions of the law, which expressly refers to a "declaration receipt", a document clearly distinguishable from a postal acknowledgement of receipt.
Another difficulty with article 4 of the draft legislation is the French Superior Audiovisual Council's right to notify the declarant, within one month of receipt of the complete declaration, "that it is not a distributor of services within the meaning of IV of article 30-2 of the law of September 30, 1986".
The French Superior Audiovisual Council considers that it would be desirable for the grounds on which the French Superior Audiovisual Council may refuse to recognize the status of commercial distributor to be more explicitly detailed, and to cover both failure to comply with the conditions laid down in IV of article 30-2 of the law of September 30, 1986, failure to provide the French Superior Audiovisual Council with the required documents, and the case where the activity carried out or envisaged does not fall within the scope of IV of article 30-2 of the law of September 30, 1986.
II - Other service distributors
Article 6 reiterates the principle that distributors must be declared, and sets out the procedures for doing so. The French Superior Audiovisual Council considers that it would be useful for this article to specify that each of the commercial distributors' supplies must be declared; indeed, some distributors, in particular cable operators, offer distinct supplies depending on the areas they serve.
Article 7 specifies the information to be included in the declaration, which includes "the structure of the supply of services made available to the public"; in view of the various obligations (takeover obligations, on-air service in compliance with the provisions of article 34-1 of the law, absence of discrimination between editors) placed on distributors, and the need for the French Superior Audiovisual Council to ensure that only agreed or declared channels are distributed, it seems essential that the decree should expressly refer to the complete list of services distributed, as well as the structure of supplies (prices of the various options and numbering of services in each option).
The French Superior Audiovisual Council also believes that the decree should make provision for the confidential transmission of distribution contracts for the various services. This is essential to ensure that relations between publishers and distributors are non-discriminatory, in accordance with article 3-1 of law no. 86-1067 of September 30, 1986.
Article 8 of the draft legislation makes provision for the French Superior Audiovisual Council to "notify the declarant within one month that it is not a distributor of services within the meaning of the second paragraph of I of article 34 of the aforementioned law of September 30, 1986".
As in the case of DTT commercial distributors, the French Superior Audiovisual Council considers that it would be desirable for the grounds on which the French Superior Audiovisual Council may oppose the exercise of the activity of commercial distributor to be more explicitly detailed, and to cover both failure to abide by the conditions laid down in article 34 of the law of September 30, 1986, failure to provide the French Superior Audiovisual Council with the required documents, and the case where the activity exercised or envisaged does not fall within the scope of article 34 of the law of September 30, 1986.
Article 9 enables the French Superior Audiovisual Council to object, within one month, to the operation or modification of a supply that does not comply with the obligations laid down by law, in particular those mentioned in articles 1, 3-1, 15 and 34-1 to 34-2.
Article 33-1 should also be mentioned, to expressly allow the French Superior Audiovisual Council to object to the introduction, in a supply, of a channel falling within the competence of France that is neither licensed nor declared.
The time limit given to the French Superior Audiovisual Council to intervene in application of articles 8 and 9 could usefully be extended to two months, i.e. the common law time limit set out in article 21 of law 2000-321 of April 12, 2000 on the rights of citizens in their relations with administrations. It should be noted that in any case, operators could proceed with modifications to their supplies without waiting for this period to expire, since article 6 of the draft decree makes provision for a "prior declaration" of modifications, but does not set a time limit between declaration and implementation of the modifications.
III - Taking over local public-initiative services
Articles 10 to 12 of the draft decree, relating to the conditions for the takeover of local public-initiative services, do not summon any comments from the French Superior Audiovisual Council.
This notice will be published in the Journal officiel de la République française.