Opinion of June 21, 2005 on the draft decree on exceptional local opting out

The French Superior Audiovisual Council has been asked to give its opinion on a draft decree defining the conditions for exceptional local opting out of national television services broadcast by terrestrial hertzian means, in application of article 28, 12° of the amended law of September 30, 1986 on freedom of communication. After deliberation, the Council makes the following observations.

Firstly, the French Superior Audiovisual Council regrets that, contrary to the practice observed for other draft decrees issued in application of the law of July 9, 2004, the Government did not carry out a prior public consultation on this text, which is nevertheless likely to concern a large number of operators.

While the Conseil is not hostile to the development of local opt-outs for national private broadcasters, which contribute to plurality, it considers that the current wording of the draft decree raises questions as to its compatibility with the provisions of the law.

The purpose of the draft decree is to specify the conditions under which private terrestrial channels broadcasting free-to-air throughout France may carry out "exceptional local opt-outs" featuring national advertising messages.

In the 4th paragraph of article 2, these exceptional local opt-outs are limited to four per year and per zone, but this limitation is immediately contradicted by the rest of the paragraph, which adds "except when they relate to a seasonal sports competition and their programming takes place between 11 p.m. and 8 a.m.", with no frequency conditions.

As a result of this addition, the French Superior Audiovisual Council considers that the wording of the draft decree does not correspond to the legislator's intention.

This wording, in particular its reference to the sports season, opens up a wide range of possibilities for opting out, which are only formally counterbalanced by the criterion of the "great importance" of the event for the local audience, and by the need for authorization issued by the French Superior Audiovisual Council.

In fact, when it comes to sports, the French Superior Audiovisual Council will not be in a position, on the date it gives a ruling, to assess the importance of the event for the local public. If the decree were maintained as it stands, the CSA would be obliged to make the same decision for all opting-outs linked to a sporting season, and would thus have extremely little room for manoeuvre in this area.

As a result, local opting-outs linked to seasonal sports competitions, far from being exceptional, are likely to become a regular occurrence. As the draft decree places no restrictions on the nature of the sports discipline, the risk of regular opting out would be accentuated by the possibility of showing sports competitions linked to any type of sport.

In addition, the French Superior Audiovisual Council notes that, when examining the law of July 9, 2004, the Constitutional Council ruled on the insertion of national advertising within exceptional local opt-outs and, in its decision n°2004-497 DC of July 1, 2004, specified the conditions under which this provision could be considered not to undermine plurality:

"Considering that "local opt-outs", which can only be exceptional and must be authorized by the French Superior Audiovisual Council, may only include advertising messages if they are "shown throughout the national territory"; that, consequently, the criticized provisions will not have the consequence of jeopardizing the advertising resources of local media in such a way as to undermine the pluralist conditions under which freedom of communication is exercised".

In this respect, the French Superior Audiovisual Council observes that, if they were not exceptional, opting out with national advertising could risk jeopardizing the advertising resources of local media in such a way that plurality would be threatened.

Respect for plurality, a constitutional principle enshrined in article 1 of the amended Act of September 30, 1986, and which must guide the authorities' actions in the audiovisual industry, implies that priority should be given to measures which guarantee the economic viability of different media.

For all these reasons, the French Superior Audiovisual Council has issued an unfavorable opinion on the draft decree submitted to it, insofar as it makes provision for a specific regime for programs relating to a seasonal sports competition, authorizing de facto and without limitation local opt-outs with national advertising messages.

This notice will be published in the Journal officiel de la République française.