Opinion of May 14, 2003 on the draft decree on the reorganization of analog frequencies for DTT.

Avis sur le projet de décret portant application de l'article 30-1 de la loi n°86-1067 du 30 septembre 1986 et relatif à la répartition et au préfinancement du coût des réaménagements des fréquences (Opinion on the draft decree enforcing article 30-1 of law n°86-1067 of September 30, 1986 and relating to the breakdown and pre-financing of the cost of frequency upgrades)

The French Superior Audiovisual Council has been browsed by the government, in accordance with the last paragraph of article 18 of law no. 86-1067 of September 30, 1986, as amended, on a draft decree relating to the breakdown and pre-financing of the cost of frequency upgrades required for the rollout of digital terrestrial television, and has issued the following opinion.

Generally speaking, given the complexity of the text, the French Superior Audiovisual Council considers that the various options available to digital terrestrial television service editors should be clarified: the minimum option, under which the expenses incurred by analog terrestrial television service editors are shared directly between digital editors; the option, under which the Agence nationale des fréquences pre-finances redevelopment expenses and is then reimbursed by digital editors; and the option, under which the same agency collects the sums needed to finance redevelopment expenses from digital editors each year.

In preparing this decree, the amount of pre-financing and the terms and conditions for reimbursing the spectrum redevelopment fund should also be clearly set out. The French Superior Audiovisual Council has understood that the government's decisions, following the proposals of the report drawn up by Mr. Michel Boyon, lead to the pre-financing of the first 500 analogue frequency redeployments for an amount of 32 million euros and its reimbursement over a period of five years, in five equal annual instalments.

The French Superior Audiovisual Council also believes that it would be legitimate for digital editors to issue an advisory opinion on the work programs and expenditure committed by analog terrestrial television service editors.

Article 1 makes provision for digital terrestrial television service editors to bear the full cost of frequency upgrades required for their diffusion. This provision is in line with the provisions of the last paragraph of article 30-1 of the 1986 law as amended. It confirms that the final cost of frequency upgrades will be borne in full by all digital terrestrial TV services, whether national or local.

With regard to the definition of the cost of frequency upgrades, as set out in article 2 of the draft decree, the French Superior Audiovisual Council approves the approach adopted, which consists of integrating all expenses and costs resulting from technical operations on both broadcasting installations and reception means. However, it would like certain points to be clarified with regard to the scope of interventions that can be taken into account. For example, the expenses provided for in 2° of article 2 of the draft decree should include all operations essential to ensure continuity of reception of terrestrial broadcasting programs in analog mode, in particular the modification and replacement of antennas by service providers, as well as the reorientation of antennas which, in certain specific cases, makes it possible to avoid substitutions of broadcasting frequencies which are more costly and delicate to implement. Lastly, the French Superior Audiovisual Council considers that coordination costs include the operating expenses of the artificial person provided for in article 6 of the draft decree.

The procedures for breaking down the cost of frequency upgrades between digital terrestrial television service editors, set out in articles 4 and 5 of the draft decree, take into account the specific characteristics of each service, in particular its coverage area and diffusion time.

However, the French Superior Audiovisual Council questions the conditions for applying the schemes set out in article 5 of the decree, which presuppose a prior breakdown of expenses and costs between local services, even though these will be designated after the national digital terrestrial television operators. The breakdown method made provision for could therefore result, in practice, in an increase in the burden of reimbursements incumbent on national digital terrestrial television service editors. For this reason, it would be desirable for the cost of frequency upgrades for the three channels reserved for local digital terrestrial television services (3/33rd of the total cost) to be pre-financed by the Agence nationale des fréquences, with specific reimbursement arrangements.

With regard to Title II, the French Superior Audiovisual Council would like the pre-financing scheme described in Article 6 to be accompanied by an advance payment scheme comparable to that provided for in Article 8 of the Decree. It also considers that the three-month period made provision for the creation of an artificial person responsible for coordinating redevelopment operations is excessive. The French Superior Audiovisual Council would therefore be in favor of shortening the deadline, which could be set by an imperative date, in order to guarantee the rapid deployment of digital terrestrial broadcasting.

With regard to Title IV, the French Superior Audiovisual Council notes that the exclusion of overseas France and Saint-Pierre-et-Miquelon from the scope of the present text implies the subsequent adoption of a specific decree, insofar as digital terrestrial television is intended to extend to these areas of the national territory.

These are the observations of the French Superior Audiovisual Council on the draft decree submitted by the government.