Opinion no. 2014-5 of February 26, 2014 concerning a draft decree amending decree no. 2006-1067 of August 25, 2006 taken for the application of article 80 of law no. 86-1067 of September 30, 1986 relating to freedom of communication.

The French Superior Audiovisual Council has been consulted by the Government, in accordance with the provisions of article 9 of the amended law no. 86-1067 of September 30, 1986 on freedom of communication, on a draft decree amending decree no. 2006-1067 of August 25, 2006 implementing article 80 of the amended law no. 86-1067 of September 30, 1986 on freedom of communication, and has issued the following opinion after deliberation.

I. -General comments

The Conseil reiterates its commitment to the existence and development of radio services fulfilling a local social communication mission, and to the way in which they are financed.

As a whole, the Board approves the draft decree, which aims to modernise the scheme for financial support for local radio expression by improving the arrangements for payment of subsidies to community radio stations by the Fonds de soutien à l'expression radiophonique (FSER), by rewarding in the award of subsidies the work of radio stations that best fulfil their mission of local social communication through the establishment of objective criteria, and by strengthening control over the use of subsidies.

II. -Comments on the specific schemes submitted for the Council's opinion

With regard to the amendments to article 1 of the decree of August 25, 2006 concerning the definition of "commercial resources from messages shown on air and having the character of brand advertising or sponsorship", the Council is in favor of the express mention that resources resulting from the design and production of advertising messages must be taken into account.

The Commission is also in favor of the express mention that these resources include those resulting from the valuation of the broadcast of advertising on the radio service broadcast on a network not using the frequencies assigned by the Commission when it constitutes the complete and simultaneous takeover of a service authorized by the Commission, provided that it is indeed the same service, as well as the provision which makes provision for the inclusion as advertising resources of "sums invoiced to advertisers for the diffusion, design and production of advertising or sponsorship messages (...) in the programs of a radio service authorized for broadcast over the air and offered on an online public communication service".

On the other hand, the automatic inclusion in the service's resources of donations made by advertisers whose messages are shown on the service's airwaves, or designed or produced by the service, does not seem obvious in the light of the provisions of article 80 of the law of September 30, 1986. In fact, advertisers, as well as private individuals and other organizations, can make donations without them being considered a priori as disguised commercial resources.

The Conseil is in favor of the amendments made to articles 3 and 5 of the 2006 decree, which oblige radio services to justify the use of the various subsidies paid to them.

In addition, by adding an article 5-1 to the decree, the draft makes it possible to regulate the granting of additional operating subsidies to services that carry out specific opting out in addition to their "initial authorization", by making them subject to two conditions.

The Conseil proposes replacing the term"initial authorization", which does not exist either in the 1986 law or in the 1994 decree, with the term "main program", since opting out can be authorized at the same time as the main program. With regard to the second condition, the Conseil also proposes replacing the term "edited" by the term "produced", where the provider of a radio service is the authorized artificial person. Furthermore, it does not seem sufficient to make provision for the fact that the personnel producing the specific program are located in different premises. For this measure to be truly effective, it would be preferable to make provision for these different premises to be located within the area authorized for opting out.

In addition, the Council notes that there are no conditions attached to the granting of an operating subsidy to a service that does not carry out a specific opting out. It wonders whether such services should be subject to certain conditions, to ensure that the support fund only benefits radio stations with a genuine local base. For example, it could be made provision for an operating subsidy to be granted only if the majority of the service's programming is broadcast in one of the zones covered by the authorization. The granting of this subsidy could also be subject to the production of a program of local interest lasting four hours a day, excluding music programs without animation or provided by a third party, as the draft decree makes provision for the granting of additional operating subsidies to services producing specific opting out.

The Council is also very much in favor of refocusing the selective subsidy on radios that best fulfill their mission of local social communication, by restricting payment of this subsidy to services that score points, during the FSER commission's examination of the file, on criteria no. 3, 5 or 6 mentioned in article 6, which assess the quality of the program in terms of educational and cultural initiatives (criterion no. 3), initiatives to promote integration and fight discrimination (criterion no. 5) and initiatives to promote the environment and local development (criterion no. 6). Payment of the selective subsidy would thus be conditional on the implementation of genuine socio-cultural actions.

Lastly, the Board is in favor of the proposed amendments to articles 10 and 11 of the 2006 decree to make provision for the reimbursement of subsidies paid in the event of suspension or cessation of the service's diffusion, as well as the addition of an article 14-1 concerning the organization of controls. It proposes that the first paragraph of this new article be worded as follows: "On the initiative of the Minister in charge of communication, regular documentary and on-site inspections are organized to verify the use of the subsidies referred to in articles 3 to 6. These inspections will be carried out in conjunction with the territorial audiovisuel committees.

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

Paris, February 26, 2014.
For the French Superior Audiovisual Council
The Chairman,
O. Schrameck