Opinion of March 1, 2006 on the draft decree amending the specifications for public radio and television channels

Opinion No. 2006- 2 of March 1, 2006 on the draft decree amending the specifications of the companies France 2, France 3, France 4, France 5, Réseau France Outre-mer, Radio France and Radio France Internationale


The French Superior Audiovisual Council (Conseil supérieur de l'audiovisuel) has been asked to give its opinion on a draft decree amending the specifications of France 2, France 3, France 4, France 5, Réseau France Outre-mer, Radio France and Radio France Internationale, pursuant to article 48 of the amended law no. 86-1067 of September 30, 1986 on freedom of communication. After deliberation, the Council makes the following observations:

1. Schemes relating to social cohesion and the fight agains discrimination

First of all, the Conseil welcomes the fact that the draft decree introduces into the specifications of France 2, France 3, France 4, France 5, Réseau France Outre-mer, Radio France and Radio France Internationale the objective of promoting social cohesion and fighting discrimination, as well as a series of related schemes.

More specifically, the Conseil notes with interest that its previous demands for the insertion of a scheme requiring public-sector audiovisual services to take into account "the diversity of the origins and cultures of the national community" "in their on-air representation" have been taken into consideration.

Indeed, the Conseil had on several occasions taken the view that, rather than being limited to the promotion of the different cultures that make up French society and to the fight against discrimination, the provisions set out in the terms of reference "should be aligned with the wording negotiated by the Conseil with the private channels".

Secondly, the Council notes that the draft decree strengthens the existing scheme for private channels in the case of public-sector audiovisual services, by adding new obligations:
- to ensure that programs give as realistic a picture as possible of French society in all its diversity;
- pay particular attention to the on-air portrayal of different segments of the population, ensuring that references to people's origins are only made when necessary to understand the information;
- promote the values of a shared culture and civic-mindedness.

The Council summons the Government's attention to the difficulties of interpretation and application of this provision, which have been expressed by the editorial teams of national program companies, and which the regulation authority may encounter in monitoring its implementation.

2. Obligations applicable to Réseau France Outre-mer

a) Updating of several obligations applicable to Réseau France Outre-mer programs

The Council welcomes the fact that the draft decree updates a number of obligations applicable to the programs of Réseau France Outre-mer, as is the case for other public channels (article 15 on the protection of person under 18; article 17 on the adaptation of programs for the deaf and hard of hearing; article 18 on the imperatives of national defense and public safety).

The Council is also pleased to note that the rules governing the diffusion of advertising messages for the France Ô service are identical to those applicable to other public channels in mainland France (article 27).

b) Harmonization of obligations concerning the diffusion and production of audiovisual and cinematic works

The Conseil wishes to point out that it considers it desirable to make several decrees applicable to overseas France (decree no. 90-66 of January 17, 1990 on the diffusion of works, decree no. 2001-609 of July 9, 2001 on the development of the production of cinematographic and audiovisual works for free-to-air analog terrestrial TV channels), currently applicable only in overseas France.

In a letter dated November 25, 2003, the Minister of Culture and Communication informed the Conseil that decree no. 90-66 applied to RFO in mainland France and overseas France, but not in the overseas collectivities.

Harmonizing these regimes would make it possible to subject all RFO channels to obligations that seem to be in line with their public service missions.

c) Obligations to broadcast audiovisual works

The Council notes with interest that the draft decree makes provision for the diffusion of audiovisual works by services published by RFO.

However, it considers that RFO's mission statement should be more explicit about its obligations in this area, in particular its obligation to respect the obligations to broadcast audiovisual works set out in article 13 of decree no. 90-66.

d) Obligations to broadcast cinematographic works

The Council regrets that the draft decree does not make provision for the diffusion of cinematographic works.

Indeed, the second paragraph of article 70 of the amended law of September 30, 1986 stipulates that provisions relating to the diffusion of cinematographic works must be included in the specifications of the companies mentioned in article 44, which includes RFO, and that these provisions must set out :
- a maximum annual number of broadcasts and reruns of feature-length cinematographic works;
- the obligation to devote at least 60% of these broadcasts to cinematographic works and at least 40% to works of original French expression, particularly during prime time;
- the programming schedule for feature films.

The Council therefore considers it necessary for RFO's mission statement to be more explicit about the company's obligations in this area, in particular with regard to compliance with the obligations to broadcast cinematographic works set out in article 8 of decree no. 90-66.

e) Production obligations

The Conseil deplores the fact that the decree makes no provision for RFO's contribution to the production of audiovisual and cinematic works.

In fact, in accordance with article 1 of decree n°2001-609 of July 9, 2001, RFO, as a national program company and subsidiary of France Télévisions, is subject to the decree with regard to its branches in overseas France.

The Council therefore considers it necessary for RFO's mission statement to be even more explicit about the company's obligations in this area.

f) Schemes concerning France Ô

The Conseil notes that the draft decree provides the specifications for Réseau France Outre-Mer's missions and obligations with the details required for the digital terrestrial broadcasting of its France Ô television program in mainland France.

The French Superior Audiovisual Council questions the compatibility of the draft decree with the law of September 30, 1986, insofar as article 44 of the law stipulates that RFO's public service obligations include broadcasting overseas France and not in mainland France.

He also points out that, as drafted, the amendment gives France Ô priority broadcasting throughout mainland France.

With regard to the broadcasting areas concerned, the Conseil would like to summon the government's attention to the need to know in good time the list of sites for which the right of pre-emption could be exercised, in order to enable calls for tender to be organized for local digital terrestrial television channels.

The Conseil also notes that France Ô is not required to make any contribution to cinematic production or audiovisual production, given the nature of its programming.

In particular, it notes that article 32-2 of the draft decree makes provision for the France Ô service to devote less than 20% of its time to the diffusion of audiovisual works, which exempts it from these obligations to contribute to audiovisual production.
The Conseil notes that application of this scheme will require a reorganization of France Ô's programming schedule, which currently exceeds the 20% threshold.

g) Right to take over TF1 programs

The Conseil notes with interest that the draft decree makes provision for the inclusion in the specifications of Réseau France Outre-mer of an adjustment to its right to take over TF1's programs.

On several occasions, the Council has deemed it desirable that RFO's free-to-air coverage of TF1 programs, a source of conflict with local private TV channels, should cease, unless it concerns events of major importance which no local channel would be able to broadcast under satisfactory reception conditions.

In a letter dated September 20, 2005, the Council asked the Minister of Culture and Communication whether it would be appropriate to maintain the priority status enjoyed by RFO under article 62 of the amended law of September 30, 1986, particularly in areas where local private television stations are present.

However, the Council questions the effectiveness of this arrangement, which makes provision for RFO to inform local television services broadcasting free-to-air terrestrially in the geographical area concerned in advance of its intention to rebroadcast TF1's programs, and for RFO to exercise its right to rebroadcast these programs only if these broadcasters have not informed RFO that they have acquired the broadcasting rights within three weeks of being informed by RFO.

In fact, this scheme merely makes provision for RFO to inform private channels, without specifying that private local TV stations have priority over RFO.

In addition, the Council notes that the scheme does not specify that, within three weeks of RFO's request to private local TV stations, the latter are entitled to acquire the programs in question.

It therefore considers that it does not provide a fully satisfactory response to the problem it had raised, particularly in the case of a program for which TF1 would not wish to lift exclusivity immediately after its diffusion, RFO, through the use of its right of pre-emption, having the possibility of diffusing it, even simultaneously.

3. Other comments

The Conseil welcomes the fact that the draft decree makes provision for the introduction in the preamble to the specifications of France 2, France 3, France 4 and France 5, and in a new article for Radio France, Radio France Internationale and Réseau France Outre-mer, of the mission to pay particular attention to issues relating to the environment and sustainable development. In addition to the Council's interest in raising public awareness of environmental issues, the Council notes that Article 6 of the Charter of the Environment makes provision for "public policies to promote sustainable development".

However, the Council regrets that the draft decree does not take up certain demands it had previously made. First of all, the Conseil reiterates that it considers it necessary to strengthen the ethical obligations of public broadcasters to bring them into line with the stipulations negotiated with private broadcasters. Thus, the inclusion of provisions relating to on-air control, the supervision of programs summoning public participation, plurality and honesty of information, and judicial procedures, would enable more effective monitoring of compliance with ethical requirements by the programs broadcast.

The Conseil also points out that France 5 should be subject to the obligation to broadcast original European works in the first half of the evening, since it has 24-hour digital terrestrial broadcasting. Decree n°2001-609 should be amended accordingly, so that France 5 is no longer excluded from this obligation, and its mission statement should make provision for any modulation, since this channel has opted not for the general system of 16% of its sales devoted to production, but for the optional system which allows it to commit itself to more than 16%.

Lastly, the Conseil considers that France 5 should also be under an obligation to broadcast direct expression programs, pursuant to article 55 of the amended law of September 30, 1986, since France 5 has become a national program company. Indeed, in line with the modification of its specifications in June 2003, which included the obligation to show official campaign programs, and to ensure that the channel can contribute to political and trade union expression, the Conseil considers it desirable to set the obligation to broadcast programs of direct expression.

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

Paris, March 1st 2006
For the French Superior Audiovisual Council,
Dominique BAUDIS
Dominique BAUDIS