Opinion of the French Superior Audiovisual Council on the draft legislation to reform the organization and financing of public audiovisual services
I - Reform of the public audiovisual industry
Today's highly competitive audiovisual landscape summons a new affirmation of the public sector's missions, a strengthening of its financing and a rationalization of its organization. The French Superior Audiovisual Council, strongly attached to a strong, united and diversified public service (French Superior Audiovisual Council press release no. 375 of 24/08/98), therefore endorses the government's desire to strengthen the public sector. The Conseil endorses all the objectives aimed at grouping the public broadcasting companies into a single coordinated pole, with a unified management and strategy, providing them with multi-year funding, substantially reducing the share of advertising in their financing, and extending the terms of office of their managers.
The Council approves the major missions summonsed to the public sector and their affirmation in law. These missions, listed in article 1 of the draft legislation, could include contributing to the production of French and European works, as well as providing international information.
A/ On structures and methods of appointment
1/ Structures
The Board supports the creation of a holding company for France Télévision. The enlargement of the public television group should extend and confirm the closer ties between France 2 and France 3.
From this point of view, the appointment of a president common to the holding company and the subsidiary channels is a guarantee of coherence and complementarity in the action of all the channels in the public sector.
However, in order to guarantee the effectiveness of this holding company, the Board considers that a Board of Directors, exercising its full functions and powers, is likely to better achieve the objective pursued by simplifying the proposed architecture.
In any case, if the government maintains the structure presented in the draft legislation, it would seem desirable that the Supervisory Board should not be the majority emanation of the State shareholder, so that the independence of public television continues to be guaranteed. For this reason, it would be preferable to increase the number of qualified personalities appointed by the French Superior Audiovisual Council to three, and to reduce the number of State representatives to three.
2/ Appointment methods
The French Superior Audiovisual Council's appointment of the Chairman of the Management Board does not require the prior opinion of the Chairman of the Supervisory Board. Consulting the chairman of a body over which the French Superior Audiovisual Council will exercise control does not seem compatible with the principle of independence of the regulation authority.
Secondly, the Council finds it difficult to see how, in practice, the French Superior Audiovisual Council's appointment proceedings, which are likely to give rise to several votes by the college on several candidates, could be reconciled with consultation of an authority outside the Council.
It is also important that the Chairman of the Management Board should have complete freedom to choose his entire team. The Board therefore proposes that General Managers be appointed by the Chairman of the Board alone.
With regard to the procedure for dismissing the Chairman of the France Télévision Management Board, while approving the principle of consultation, the Board considers that the opinion of the Supervisory Board as a whole would be preferable to the opinion of its Chairman alone, even when the French Superior Audiovisual Council is at the origin of the proceedings.
Finally, it would be desirable to unify the method of appointing the presidents of the national program companies: the president of RFI should, like the presidents of RFO and Radio France, be appointed from among the personalities nominated by the French Superior Audiovisual Council.
The French Superior Audiovisual Council would like to be asked for its opinion on the companies' articles of association.
3/ Transitional arrangements
The Conseil considers that the transitional provisions between the entry into force of the law and the implementation of these new structures need to be specified.
Article 7 of the draft legislation could also make provision for the term of office of presidents appointed after November 1, 1998 to be extended to five years from the date of entry into force of the law.
B/ Group scope
The Conseil considers that the scope of the new France Télévision group should be extended to include RFO. This channel would be strengthened by being part of the holding company, whereas it would run the risk of being marginalized if it were excluded.
In any case, TF1's free transfer of its programs to RFO, as provided for in article 62 of the law, is no longer justified, particularly in view of the emergence of local overseas France television channels.
C/ On the resources of public channels
1/ Target agreements
The Conseil approves the government's intention to introduce contracts of objectives and means, setting out in particular the companies' development priorities, the projected annual cost of their activities, and the quantitative and qualitative performance and result indicators assigned to them.
However, the Board would like to see a clear and precise definition of the respective purposes of the contracts of objectives on the one hand, and the terms of reference on the other. The controls exercised respectively by the Supervisory Board and the French Superior Audiovisual Council must relate to distinct obligations and documents.
Obligations relating to programming must remain within the scope of the channels' specifications, so that they can be controlled by the French Superior Audiovisual Council.
2/ Financing methods
The Board fully endorses the government's intention to allocate all public resources to the holding company, with the Management Board responsible for distributing them among the various subsidiaries, thus enabling genuine group management.
The Board also approves of the substantial reduction in on-air advertising, thus reaffirming the predominantly public nature of France Télévision's financing. However, any reduction in advertising revenues must be offset by an increase in public funding, and in particular by the licence fee, which has the advantage of guaranteeing its beneficiaries a stable, predictable and survival resource, especially as its increase will be set within the framework of a multi-year contract of objectives. In addition, the financing of new programs shown in place of advertising must be ensured, and France Télévision must be able to assert its position on the market for diffusion rights in the face of private competitors strengthened by the increase in their advertising sales.
In addition, budget allocations are not traditionally included in the sales of public channels, which serve as the basis for calculating their production obligations. The reduction in advertising revenue and its compensation in the form of budget allocations could therefore lead, mathematically, to a reduction in these production obligations. In future, therefore, we must make provision for the inclusion of budgetary allocations in the basis for calculating the production obligations of public channels.
Lastly, with regard to the five-minute limit on the duration of advertising screens, the method for calculating this hourly volume (sliding hours) needs to be clarified.
D/ On INA
The Council wishes to be asked to give an opinion on the adoption of INA's statutes and specifications.
The wording of the fourth paragraph of article 4 of the draft legislation needs to be clarified with regard to INA's right to exploit archives: the proposed wording could lead to the assumption that this right is granted for a period of one year, whereas this one-year period refers on the contrary to the period as of which INA may exercise its right of exploitation.
II - Transposition of the Television without Frontiers Directive
The Council fully approves the government's decision to transpose the following provisions of Directive 89/555/EEC of October 3, 1989, as amended by Directive 97/36/EC of June 19, 1997, concerning Television without Frontiers.
1/ Major events
The guarantee that viewers will not be deprived of the opportunity to follow events of major importance, particularly sporting events, is an essential element of the public's right to information. The mutual recognition scheme introduced by the Television without Frontiers Directive of June 1997 guarantees the exercise of this right on a European scale.
On the occasion of this transposition, the Council would like to see a number of clarifications. The method used to determine the list of events of major importance needs to be modified. The aim is twofold: to adopt a transparent, adversarial and flexible procedure, while guaranteeing operators legal certainty in the acquisition of broadcasting rights.
With this in mind, the Council believes that the decree made provision for should be adopted after consultation with the French Superior Audiovisual Council. As the law sets the objectives, this text must define the criteria for drawing up the list. It must also provide for a flexible method of dispute resolution by the French Superior Audiovisual Council, particularly with regard to the transfer of rights acquired by operators. The decree must make provision for the list itself to be finalized by joint decree of the ministers responsible for communication and sport, after the French Superior Audiovisual Council has given its assent.
2/ Declaratory system
Concerning the declaration of European channels prior to their redistribution on French cable networks, the Conseil wishes to be browsed for an opinion on the decree setting out this proceedings, which it has been applying for over a year.
It goes without saying that the prior declaration procedure does not apply to over-the-air broadcasting of European channels, insofar as the private use of frequencies belonging to the State's public domain requires a prior authorization procedure, possibly after a call for applications. The text could be clarified in this respect.
3/ Protection of persons under 18
The Council would like to see the scheme introduced for the protection of persons under 18 extended to include the Council's action in this area. Article 15 of the 1986 law could thus specify that the Council's mission includes program classification and signage.
4/ Satellite regime
In order to comply with Community law, the Conseil approves the abrogation of the third and fourth paragraphs of article 31 of the law of September 30, 1986.
However, the Council wishes to draw the government's attention to the urgent need to adopt a satellite regime in France. Thus, the legal vacuum dating from 1989 can easily be filled under this draft legislation by extending the "cable" decree n92-882 of September 1, 1992 to channels shown by satellite on frequencies not assigned to the French Superior Audiovisual Council under article 24 of the 1986 law.
The letter accompanying the Conseil's opinion
"Dear Minister,
[...] With regard to the project, the Council is particularly concerned about the negative consequences that the creation of a Supervisory Board could have, noting two major risks in particular:
* Firstly, the emergence of a rivalry between two legitimacies that would be detrimental to the operation of the channels: that of the Chairman of the Management Board, appointed by the French Superior Audiovisual Council, and that of the Chairman of the Supervisory Board, whose appointment would largely be made by the State.
* Secondly, there is a risk of confusion between the respective missions of the Supervisory Board, which will monitor the execution of contracts of objectives, and the French Superior Audiovisual Council, whose control is exercised more specifically over the execution of specifications. In practice, this distinction may prove difficult to maintain.
As regards the implementation of the planned reform, the Conseil is concerned about the transitional period that will elapse until the new structures come into effect, particularly if this is to follow the appointment by the Conseil of the next chairman of France Télévision, as the current chairman's term of office expires on June 1, 1999. To prepare for this far-reaching development in the companies concerned in the best possible conditions, it would be desirable for the next Chairman appointed by the Board to be the first Chairman of the Management Board of the new holding company, and for this specific provision to be included in the law.
Lastly, the Council has taken note of the voluntary limitation of the draft legislation's scope, which concerns only public audiovisuel and the transposition of part of the Television without Frontiers Directive. However, it would like to summon your attention to the urgent need to amend certain laws and regulations currently in force. With regard to quotas for French-language songs, an initial assessment of the law's impact, but also its limitations in its current form, is now available. The Conseil considers it essential to have the power to modulate these quotas, according to the format of each radio station, and in particular the share it gives to new talent.
For better regulation of the radio landscape, which must be able to develop in line with the criteria set by the legislator, the existing texts should be amended on three points: proceedings for calls for applications, automatic renewal of authorizations, and changes of category during the term of authorization.
In addition, the Conseil hopes that the law will enable it to preserve the possibilities for developing new technologies, and in particular digital terrestrial diffusion.
The Board will be submitting proposals for amendments to legislation or regulations on these points in the near future.
Lastly, the Conseil would like to remind you that it voted against the exclusive right to broadcast public channels on the TPS channel package shown by satellite [...]".