Roch-Olivier Maistre's hearing before the French Senate's commission of inquiry "to shed light on the processes that have led or may lead to media concentration in France, and to assess the impact of this concentration on democracy".

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Mr. Chairman,

Mr. Rapporteur,

Ladies and Gentlemen of the Senate,

Thank you for your welcome. As you know, the Conseil has repeatedly summoned the need to reflect on the adaptation of the anti-concentration scheme set out in the Act of September 30, 1986, in order to bring it into line with the realities of the audiovisuel landscape. We mentioned this in our opinions on the draft audiovisuel reforms of 2019 (opinion of November 8, 2019 on the draft legislation on audiovisual communication and cultural sovereignty in the digital age) and 2021 (opinion of March 22, 2021 on the draft organic legislation on protecting public access to cultural works in the digital age), as did the Competition Authority in its opinion of February 2019.

This is a complex issue, on which a fair balance must be struck between :

- on the one hand, economic logic and the need to support our operators and cultural industries in their efforts to adapt to changes in their environment, in the face of the massive effects of globalized competition that are difficult to ignore today ;

- and on the other, the constitutional imperative of preserving the plurality of currents of thought and opinion, a principle whose respect is consubstantial with our democratic debate.

While this exercise has often given rise to more petitions of principle than proposals, the French Superior Audiovisual Council can only welcome the fact that national representatives are taking up the subject, as are government departments. In an attempt to simplify the debate, I'd like to make a brief distinction in my introductory remarks:

- on the one hand, the current realities and trends of our audiovisual landscape (I) ;

- on the other, the relevance and limits of the current anti-concentration scheme (II).

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1. What are the current realities and trends?

1.1 At the risk of surprising your Committee, I'd like to start by saying that the audiovisuel landscape today is infinitely less concentrated than it was when the legislator passed the September 30, 1986 law, at the end of the State monopoly. Let's be the verdict:

- There are currently more than 1,000 radio stations in mainland and overseas France. Public, private, associative, national, local, generalist and musical. To this dense and diversified universe we can now add an infinite number of web radios, whose listenership continues to grow as uses, modes of diffusion and formats diversify with connected speakers and voice assistants, music streaming and podcasts.

- Television is no exception. With 30 national DTT channels and over 230 services contracted by the French Superior Audiovisual Council for broadcast on non-hertzian networks, the supply has undergone an undeniable expansion, which has been massively amplified by the widespread use of connected TV sets (81% of French households), the multiplication of screens (5.6 per household), direct access via the Internet (40% of French households) and the development of streaming (9 million subscribers).

Nearly 40 years after it was passed, the September 30, 1986 law's ambition of an audiovisual landscape " open to private initiative and in a climate of competition and plurality " has largely been achieved: the diversity of supply and sources of access to knowledge and information has continued to multiply.

1.2 Does this mean that the debate on concentration is over? I don't think so. While it is undeniable that the number of operators and sources of access to information has increased, there are some historical or new realities that impose themselves on us today. Let me give you three examples.

- Firstly, the audience is still concentrated on a limited number of publishers. In DTT, France Télévisions and TF1 will have captured 56% of the audience by 2020, and TF1 and M6 72% of the TV advertising market. In FM radio, Radio France and RTL have together captured 50% of the audience.

- Secondly, while the number of publishers present on DTT has grown thanks to the anti-concentration procedures and schemes we are implementing at the French Superior Audiovisual Council, the number of new entrants (NRJ, Altice, l'Equipe, Lagardère, Vivendi, etc.) remains relatively limited.

- Thirdly and most importantly, the development of the digital sphere is now characterized by the presence of international players with immeasurable power in terms of both usage and the value chain. The spectacular consolidation movements underway in the United States (Disney/Fox, Warner/Discovery, Amazon/MGM, etc.), with giants vying for audiovisual, film and sports rights, are now upsetting our historical private and public players.

This trend towards concentration is also evident in France, with mergers between radio and TV stations over the past few years, Vivendi's takeover of the Canal Plus group, the M6 group's takeover of Lagardère's TV channels, and the takeover of local TV stations - there have been numerous moves in recent years. More recently, there are plans for a TF1/M6 merger, and Vivendi has launched a takeover bid for the Lagardère group.

The French Superior Audiovisual Council is regularly mobilized on these issues, using the tools entrusted to it by law.

2. Against this backdrop, what are the strengths and limitations of our anti-concentration scheme? I would like to share 3 convictions with you on this point.

2.1. First conviction : for all its importance, we believe that ordinary competition law alone cannot meet the challenges.

Controlling respect for plurality differs from a purely competitive approach: its objective is not only economic, but also contributes to the functioning of democracy and the preservation of the rule of law, by guaranteeing that different currents of expression and thought can be heard in public debate.

That's why we believe it's advisable to maintain both sector-specific regulation, ensured by the anti-concentration scheme, and competitive regulation. Taking into account only plurality on the one hand, or only economic well-being on the other, without considering the effects of one on the other, would be meaningless. It would even be a drop in the bucket. That's why we're ruling out a scenario of complete liberalization in favor of maintaining a specific anti-concentration scheme. I would also like to draw your attention to the fact that the European Union is following the same logic, as illustrated by the major texts currently being drawn up by the European Commission: I'm thinking of the DSA, as well as Commissioner Breton's Media Freedom Act project, which aims to defend the presence of the media on the European continent.

2.2 Second conviction : a number of anti-concentration schemes remain fully relevant today. Let me give you 3 examples.

- Firstly, we remain in favor of maintaining the mono-media thresholds (articles 39 to 41) for the next few years, for two reasons: terrestrial broadcasting remains the only means of accessing television for a quarter of households, and this television plays a major prescriptive role, particularly in terms of information - millions of French people watch the TF1 or France 2 newscasts; moreover, these rules are powerful levers for influencing pluralism, for example by enabling the redistribution of access rights to a rare public resource: frequencies. We also support the principle of regular invitations to tender for the allocation of frequencies, and the obligations laid down by law, in the specifications and agreements signed with broadcasters. These are invaluable tools for influencing the structure of the audiovisual field, allowing the arrival of new entrants and strengthening plurality.

- Secondly, the 20% cap on non-European capital for DTT channels remains relevant in our view, at a time when the issue of cultural and industrial sovereignty is at the heart of public debate.

- Lastly, other schemes recently updated by the legislator are still relevant if we want to maintain a pluralist and diversified landscape: I'm thinking of the population thresholds that were raised in the local radio station and television sector by the recent draft legislation.

On the other hand, it is questionable whether the limit of 49% of the capital or voting rights of a national terrestrial television service shown on the air, held by an individual or an artificial person, still makes sense in business terms. Similarly, thirty years' experience has shown that the prohibition on a service editor holding more than 33% of a local service is largely ineffective.

2.3 Finally, the third conviction is that, while many of the tools are still relevant, the scheme comes up against certain limitations that the 2005 Lancelot report had already identified.

- First of all, the current rules - all those just mentioned - are limited in scope to services broadcast over the air, whether or not they offer information, and without any distinction based on their impact on the audience - the same rules apply to everyone. Yet Internet reception continues to increase, including for radio, and access to content now takes many forms.

Under these conditions, the current anti-concentration scheme only partially covers the reality of content consumption, which transits via other vectors including social networks, search engines and certain on-demand audiovisual media services.

What's more, the information available on the Internet is currently controlled by a small number of intermediaries, who list content under conditions that are sometimes opaque. Similarly, the rules applicable to the print media do not take into account titles whose influence is nonetheless significant.

As a result, the current scheme is partly out of step with developments in usage, vectors and media, and therefore with the diversity of supplies.

- Secondly, and this brings me to my conclusion, the multi-media thresholds (articles 41-1-1 and 41-2-1) seem to us to diverge in part from the reality of the media landscape, particularly with the trend we are seeing towards the assertion of the principle of global media. As already emphasized by the Lancelot Commission, I'd like to stress that we need to strike a new balance in this area, between a quantitative approach fixed by law (with the thresholds just mentioned) and regulation, and a broader power of assessment entrusted to the sector regulator. The latter should be able, on a case-by-case basis, like the Competition Authority, to determine the most appropriate "remedies" to meet the economic and social challenges posed by a transaction. For the future, and in the face of an ever-faster-changing world, this would mean giving priority to strengthening the regulator's ability to intervene.

In any case, and whatever the legislative developments to come, the French Superior Audiovisual Council's compass will remain the one entrusted to it by the legislator: to guarantee freedom of communication and ensure respect for the plurality of currents of thought and opinion. I would like to thank you for your attention, and remain at your disposal to answer any questions you may have.