Opinion of July 11, 2006 on the draft legislation on the modernised audiovisual diffusion and television of the future
Opinion n° 2006-4 of July 11, 2006 on the draft legislation concerning the modernised audiovisual diffusion and the television of the future.
The French Superior Audiovisual Council expresses its full agreement with the objectives pursued by the government through the draft legislation relating to the modernization of broadcasting and the television of the future, in particular in that it makes provision for a more realistic scheme than that provided for by the law of July 9, 2004 for the extinction of the broadcasting of terrestrial television services in analog mode, and in that it reflects the desire to encourage the emergence of new developments for digital television.
The French Superior Audiovisual Council's opinion deals with the modalities foreseen for the extinction of analog diffusion, the development of digital television and the deployment of the television of the future.
The preparation of this opinion was primarily guided by the concern to respect plurality, a principle of constitutional value which is binding on both the legislator and the regulation authority, and which presupposes both the diversification of operators and the development of broadcasting methods capable of increasing the television supply offered to viewers; a balance must therefore be struck so that measures designed to encourage the development of DTT do not result in strengthening the position of the most powerful players.
I - ANALOG SWITCH-OFF
A/ The importance of the advantages granted to national analog channels
The French Superior Audiovisual Council does not underestimate the complexity of the migration to digital, and therefore supports the principle that incentives should accompany the switch-off. However, it questions the proportionality of the benefits granted to national analog TV channels, which are in no way comparable to those granted to existing local analog TV stations.
Indeed, the allocation of frequencies following a call for applications is one of the fundamental principles of audiovisual law, which is justified not only by the fact that radio frequencies belong to the public domain of the State, but above all by respect for the constitutional principles of plurality and equal treatment, which presuppose that authorizations are issued following a call for applications and for a limited period.
When examining the law of February 1, 1994 introducing the "simplified renewal" of authorizations (article 28-1 of the law of September 30, 1986), the Constitutional Council only validated this provision because of the guarantees it contained, in particular the limited duration of the renewal thus granted (at the time, twice five years, reduced to once five years by the law of August 1, 2000), the possibilities of non-renewal offered to the French Superior Audiovisual Council and the need to negotiate a new agreement for each renewal.
Finally, the French Superior Audiovisual Council notes that the allocation of new radioelectric resources to television publishers, in addition to the significant needs arising from the development of personal digital television and high definition, makes it essential to allocate to the audiovisuel sector most of the frequency spectrum freed up by the analog switch-off.
- Authorization extensions
Article 4 of the draft legislation automatically grants national analog channels a five-year extension of their authorization, which may be further extended for a maximum of ten years, in accordance with articles 2 and 6 of the draft legislation, if the editors' commitment to territorial coverage is met, and if they accept early abrogation of their analog authorization in certain areas.
While the law of August 1, 2000 has already made provision for a five-year extension of their authorization in return for their migration to digital, the advantages thus granted could result in the postponement to a very distant date of the organization of a call for bidders for the use of frequencies allocated to these services, as well as the overall renegotiation of these channels' agreements.
In particular, the French Superior Audiovisual Council notes that the accumulation of possible extensions is likely to push back the term of free-to-air channel authorizations until 2027, i.e. beyond the expiry dates of authorizations for other free-to-air DTT channels.
What's more, if the draft legislation were to be passed as it stands, these deadlines could be reached despite the fact that the last time the proceedings provided for in article 28-1 were implemented, and in particular the global renegotiation of agreements, was in 2000 for Canal+ and 2002 for TF1 and M6. Maintaining the same agreement for twenty-five years would not allow the necessary adaptation of the channels' obligations to developments in their environment.
For this reason, the French Superior Audiovisual Council suggests modifying the scheme in two respects.
Firstly, while it understands that the current term for Canal+, TF1 and M6 authorizations, i.e. between December 5, 2010 and April 15, 2012, could be appropriately postponed in order to be better adapted to the analog switch-off schedule, it considers that the five-year extension made provision for in article 4 is excessive.
For its part, it would be in favor of a scheme similar to that provided for in article 138 of the July 9, 2004 law in favor of FM radio services, which would enable it, as necessary, to extend the authorizations of these services for a period not exceeding two or three years.
Secondly, it proposes to replace the scheme set out in article 6 (extension of authorizations in the event of early cessation of analog broadcasting), with the right to a further "simplified renewal" of five years, which would take place after the total switch-off of analog broadcasting, in favor of service editors for whom this switch-off has proceeded satisfactorily.
- The additional channel
Article 12 of the draft legislation makes provision for the allocation of an additional service to the groups that control the national private analog channels (TF1, Canal+ and M6), once analog broadcasting has been switched off.
Through this compensation measure, the government intends to encourage a wider supply, particularly of free-to-air DTT channels, as well as the development of audiovisual production, particularly in the field of drama.
However, the French Superior Audiovisual Council summons the government's attention to the disadvantages of the proposed scheme:
- the freedom given to the service editors concerned to choose the editorial format of this additional service without constraint risks upsetting the overall balance of the DTT supply, particularly with regard to the imperative of content plurality;
- strengthening the position of incumbent analog broadcasters could weaken the economic position of new entrants, leading to concentration effects on the free-to-air channels market.
However, if, despite the drawbacks mentioned above, this measure were to be maintained, the French Superior Audiovisual Council would like to see the exercise of this right precisely supervised, thanks to the introduction of the following additional measures:
- the "Canal+" service should be excluded from the benefits of this measure, since the expiry date of its authorization is almost a year before the date set by the government for the shutdown of analog diffusion;
- the French Superior Audiovisual Council should be able to reject a project presented by a publisher if it is likely to undermine plurality, or because of the need to preserve the balance of advertising markets;
- the anti-concentration scheme should be adjusted to limit the number of free-to-air services that can be controlled by a single person, taking into account the expansion of the digital universe following the end of analog broadcasting.
B/ The chosen scheme
Title I of the draft legislation aims to organize the transition from terrestrial broadcasting of television services in analog mode to exclusively digital diffusion.
In particular, it organizes the switch-off of analog broadcasting, under a scheme that replaces article 127 of the July 9, 2004 law, which is abrogated (article 13 of the draft legislation).
In principle, the new scheme seems much better adapted to the needs of this switch-off. The French Superior Audiovisual Council would like to comment on several schemes.
- General switch-off and frequency management
Article 4 of the draft legislation sets November 30, 2011 as the date of switching off analog broadcasting. It entrusts implementation to the French Superior Audiovisual Council, "within the framework of the guidelines determined by a national plan for the cessation of analog diffusion and the shift to digital, approved by order of the Prime Minister".
In this respect, the French Superior Audiovisual Council would like the content of this national plan to be specified in the law; moreover, in view of the challenges involved, it considers that this plan should be approved by decree in the Council of State, taken after the French Superior Audiovisual Council has given its opinion.
Article 7 supplements article 21 of the law of September 30, 1986, under the provisions of which the Prime Minister is responsible for defining the use of radio frequencies, by making provision for the reallocation of freed analog frequencies, after public browsing.
Implementing this article could lead to major difficulties in spectrum management. In particular, if it were to be retained, it would be necessary to exclude from this procedure analog frequencies that would become free either on expiry of a temporary authorization, or in the course of frequency rearrangements, notably during the operations provided for in article 3 of the draft legislation. In addition, the planned public consultation would have to be supplemented by an opinion from the French Superior Audiovisual Council. The Conseil therefore wonders whether it would be appropriate to make provision for the reallocation of freed-up analog frequencies to be dealt with under the national scheme for the cessation of analog diffusion.
The French Superior Audiovisual Council also believes that the analog switch-off scheme could be supplemented by a provision making provision for no new calls for candidates to be issued by the French Superior Audiovisual Council, on the basis of article 30 of the 1986 law, from the date of promulgation of the new law.
He also summoned the government's attention to the need to amend article 62 of the law of September 30, 1986, which requires TF1 "to ensure the diffusion of the company's programs throughout the area served on the date of publication of the present law, taking into account the work programmed or undertaken to reduce shadow areas". It would appear from these schemes that the channel must show its programs by terrestrial hertzian means in all the areas served on October 1, 1986, which seems excessive in view of the coverage planned for the deployment of DTT, and could prevent TF1 from giving up hertzian diffusion in areas serving a small population equipped for satellite reception.
Similarly, the government will have to organize the switch-off of TMC's analog diffusion in the PACA region, as authorized by the inter-state agreement of March 15, 2002.
Lastly, the Conseil believes that the switch-off timetable set out in articles 4 and 5 of the draft legislation should be adapted for overseas France, where DTT rollout has not yet begun. In particular, the dates of switching off analog broadcasting should be adjusted in line with the DTT rollout schedule in each of the departments or communities concerned.
- Early analog switch-off, at the French Superior Audiovisual Council's demand
The French Superior Audiovisual Council approves the scheme, made provision for in article 3, enabling it to proceed with the early switch-off of authorizations, in areas where such switch-off will be necessary for the roll-out of DTT.
However, it considers that the criterion of the impossibility of taking over "all television services previously authorized by application of articles 26 and 30-1" of the 1986 law is excessive, and that this scheme should be able to be implemented whenever the radioelectric resources available in an area do not allow the diffusion of the services mentioned in the second paragraph of article 30-4 of the 1986 law(simulcast of analog and free-to-air DTT channels).
It also considers that the same scheme should be made provision for areas where satellite diffusion would appear to be the most appropriate.
Finally, he would like to see it made clearer that certain operations may require the early switch-off of analog authorizations in one area, in order to improve digital reception in another.
- Negotiated switch-off
Article 6 allows for the early cessation of analog diffusion, with the agreement of broadcasters and in return for an extension of their authorization, up to a maximum of five years.
The French Superior Audiovisual Council notes that this scheme can only be implemented over a short period, given the delays inherent in the frequency planning model and the date of switching off, i.e. November 30, 2009.
It considers that this scheme should be accompanied by guarantees for viewers, as in articles 3 and 5 (digital reception of the service in the area and, in the case of article 5, the level of equipment in households).
- The distinction between analog and digital authorizations
Article 1 makes provision for a distinction between the analog and digital parts of authorizations issued to channels shown on simulcast. Insofar as the effective benefit of simulcasting is subject to abide by articles 1, 3-1 and 26 of the law, it would be desirable for this article not to refer to a "right to full and simultaneous digital coverage", but rather to a priority. In addition, the last sentence should specify that digital authorization replaces analog authorization "when analog diffusion of the service is fully extinguished".
- Extension of analog channel authorizations
Paragraph 3 of article 4 of the draft legislation makes provision for the extension of the digital authorizations issued to the "historic" national channels (TF1, Canal+ and M6) for a period of five years, and in any case until March 31, 2015.
The French Superior Audiovisual Council's comments on the principle of this extension are set out above. With regard to the wording chosen, the French Superior Audiovisual Council considers it desirable to delete the reference to the fact that the term of the authorizations is extended by five years, "without being able to be prior to March 31, 2015". Indeed, the five-year extension of these channels' authorizations, under the provisions of article 82 of the law of August 1, 2000, means that they expire on December 5, 2010 for Canal+, February 29, 2012 for M6 and April 15, 2012 for TF1. The new five-year extension provided for in article 4 of the draft legislation would therefore automatically extend these authorizations beyond March 31, 2015.
It would also be advisable to remove an ambiguity in the wording of this paragraph, so as to clearly exclude TMC, a channel that was shown locally in analog before being authorized as a national digital channel.
With regard to local channels, paragraph 4 of article 4 makes provision for the extension of their licenses until March 31, 2015, when their current license expires before that date; this provision seems likely to create inequality of treatment between local TV channels, given the disparity of their situation in terms of license duration.
In any case, it would be advisable in this paragraph to replace the expression "initial analog authorization", which refers to the first authorization issued, with the expression "current analog authorization".
II - DIGITAL DEVELOPMENT
A/ Extending digital territorial coverage
Article 2 makes provision for a mechanism to encourage national DTT service editors to extend their territorial coverage, in return for a five-year extension of their license.
The French Superior Audiovisual Council considers this scheme to be appropriate.
B/ Satellite "antenna service
Article 11 makes provision for an "antenna service" by satellite, which will guarantee access to "historic" national channels in areas where reception of these channels by terrestrial hertzian means in digital mode will be impossible or excessively costly. However, the proposed scheme raises three questions for the French Superior Audiovisual Council:
- it makes provision for satellite reception of only those channels previously shown in analog mode, whereas it seems necessary to guarantee all viewers access to all free-to-air national DTT channels;
- it does not appear to require the channels concerned to be shown on the two satellite platforms (Eutelsat and Astra) used to receive the channel packages of the two main distributors (CanalSatellite and TPS) in mainland France; however, the viewers concerned should be able to access all these channels, without being required to equip themselves with a dubbed or motorized satellite dish;
- lastly, the French Superior Audiovisual Council points out that this supply "must offer these channels with the same numbering as that applicable to terrestrial broadcasting", whereas the law imposes no such obligation on cable operators, including in the context of the "antenna service" (1), nor on commercial DTT distributors (2); while the principle of this obligation seems entirely relevant, it should be the subject of a general provision, separate from this article.
C/ Simulcasting local channels
Two provisions of the draft legislation appear likely to delay the implementation of simulcasting of local channels, which the French Superior Audiovisual Council was planning to implement in the coming months, and for which it has initiated a multiplex recomposition process to free up space on multiplex R1 for local TV channels.
Firstly, article 2 makes provision for the grouping together of editors' commitments to cover the same areas, which implies a reorganization of multiplexes.
This scheme is likely to render ineffective the option given to it under article 25 of the law of September 30, 1986, to group together free-to-air channels, especially as the new provision appears to be mandatory in nature ("authorizations [...] are modified").
Secondly, IX of article 18 adds a V to article 30-1 of the 1986 law, modifying the conditions under which local analog channels can migrate to digital. The announced modification of this scheme in the draft legislation risks delaying its implementation.
Should this scheme be retained, its wording should be improved on three points:
- the expression "where appropriate outside the call for tenders" seems a source of legal uncertainty; while it seems desirable that the French Superior Audiovisual Council should be able to dispense with the call for tenders, particularly when there is no project in competition with that of the existing channel, the law should expressly specify the conditions required for such a procedure;
- It would be useful to specify that the right to full and simultaneous takeover applies to television services authorized in analog format in all or part of the planned digital diffusion zone;
- it should also be made clear that the 10 million population threshold applies only to digital terrestrial broadcasting.
III- TELEVISION OF THE FUTURE
A/ Authorization procedures
The French Superior Audiovisual Council notes that the draft legislation does not modify the principle set out in article 30-1 of the law of September 30, 1986, which makes provision for the issuance of licenses by publisher and not by distributor (II of article 18). In its view, this approach is best suited to guaranteeing plurality in the supply of services, in the context of the scarcity that will continue to prevail until analog broadcasting is phased out.
He therefore questions the usefulness of modifying this selection proceedings, with a view to enabling the diffusion of digital television services in HD and mobile reception.
In his view, the French Superior Audiovisual Council could have adapted the general criteria set out in this article in its calls for applications, without the need for legislative reform. This would have enabled the deployment of these services to begin without delay, and given the French Superior Audiovisual Council greater flexibility in project selection.
He therefore considers that only the measures concerning the anti-concentration scheme and the additional contribution to the COSIP justified an amendment to legislation.
In this respect, the French Superior Audiovisual Council welcomes the government's decision to set aside the principle of a state fee for these services in favor of an increase in the COSIP contribution (article 25 of the draft legislation), which is in line with the approach adopted in France for all terrestrial radio and television services.
B/ The place reserved for non-television services
The French Superior Audiovisual Council approves the decision to reserve for audiovisual communication services other than television, in proportions determined by the French Superior Audiovisual Council, a share of the resource allocated to personal mobile television (article 22).
It notes, however, that article 30-5 of the 1986 law already allows the diffusion of audiovisual communication services other than radio and television, according to proceedings to be set out in a decree which has not yet been published.
As far as radio services are concerned, the French Superior Audiovisual Council notes that this provision enshrines the principle that all digital terrestrial frequencies can be used for this purpose.
C/ Priority for DTT services
VIII of article 18 supplements article 30-1 of the law of September 30, 1986 to specify the specific selection criteria for high definition and personal mobile television.
In both cases, it is made provision for the French Superior Audiovisual Council to "encourage the take-up of previously authorized terrestrial services in digital mode".
Such a priority in favor of existing services does not seem justified for personal mobile TV, which is likely to allow the emergence of new formats adapted to its specific features.
D/ Services subject to declination
IX of article 18 adds a VI to article 30-1 of the 1986 law, making provision for the articulation of different authorizations issued for the same service. In the French Superior Audiovisual Council's view, this scheme should be supplemented by an amendment to article 28, 14° of the 1986 Act, concerning the declination of terrestrial channels.
This provision makes it possible for a television service and its offshoots to be subject to a single agreement, in which case production investment obligations are pooled.
However, this article makes provision for the fact that, in order to benefit from this system, the declinations "must be carried out according to an identical principle as regards the use or non-use of user remuneration".
This condition appears to unnecessarily restrict the benefit of this scheme, insofar as any declination on cable, satellite or cell phones must be considered as paying (3); in particular, it prevents the adaptation, for cell phones, of the program of a TV channel shown in free-to-air terrestrial broadcasting. Consequently, if such an adaptation meets the conditions for being subject to production obligations, these will have to be assessed separately, even if the rights have been purchased for both the main channel and its offshoots.
It would therefore be advisable to revoke this condition and specify that the legal manager applicable to a service subject to declination is that applicable to the main program, defined in the agreement concluded with the French Superior Audiovisual Council.
E/ Interoperability
The French Superior Audiovisual Council notes that the scheme does not provide a framework for contractual relations between the various players involved in personal mobile TV (publishers, commercial distributors, multiplex managers, mobile telephony network operators, technical broadcasters, etc.).
It stresses the need for such a framework, which could aim to guarantee the implementation of interoperability between platforms and services, thus enabling the reception of personal mobile TV services on all the terminals concerned (4).
F/ Report on the television of the future
The French Superior Audiovisual Council considers that the date of July 1, 2007, stipulated in article 27 of the draft legislation for the submission of a report on the implementation of the schemes relating to high definition and personal mobile television services, is too soon for the report to be able to take account of the actual deployment of these services; it therefore proposes a deadline of one year with effect from the promulgation of the legislation.
The French Superior Audiovisual Council notes that the draft legislation refers to a number of Conseil d'Etat decrees, which should be adopted after the French Superior Audiovisual Council has given its opinion.
The Council would also like the draft legislation to make express provision for its opinion to be sought on any draft legislation relating to audiovisual communication, following the example of the provision contained in article L.36-5 of the Code des postes et des communications électroniques and relating to ARCEP (5).
(1) Article 34 enables the French Superior Audiovisual Council to oppose the operation or modification of a commercial supply "if it considers that it infringes the public service missions summonsed by article 43-11 to the national program companies and the Arte channel, in particular by the numbering assigned to the service". The numbering constraints therefore concern public channels only, without requiring cable operators to adopt the numbering assigned to these DTT channels.
(2) In the absence of legal provisions, on December 6, 2005, the Conseil passed legislation recommending that DTT commercial distributors maintain the numbers they had assigned to free-to-air channels, in application of the decree of December 24, 2001, as amended, concerning the characteristics of transmitted signals and the principles governing the numbering of DTT services.
(3) Even if remuneration methods differ from one distributor to another, so that declinations do not systematically give rise to the payment of a fee by the distributor, the French Superior Audiovisual Council is necessarily led to make an overall assessment, in which it bases itself in particular on the inclusion of the program in a pay supply (included in a contract).
(4) Article 30-3 of the 1986 law makes provision for the conclusion of interoperability agreements by publishers of DTT pay-TV channels, but Article 20 of the draft legislation excludes the application of this article to personal mobile TV.
(5) "The Autorité de régulation des communications électroniques et des postes is consulted on draft legislation, decrees or regulations relating to the electronic communications sector, and participates in their implementation."