2003 started off on 24 January with the partial renewal of the Board (Collège) which takes place every two years. Two new members, Ms. Agnès Vincent-Deray and Mr. Christian Dutoit, were respectively appointed by the President of the Republic and the Chairman of the Assemblée nationale for a six-year term. Ms. Élisabeth Flüry-Hérard who had been appointed in April 2002 to replace Ms. Janine Langlois-Glandier, who had resigned, was confirmed in her office for a new term by the Chairman of the Sénat.
The Conseil’s regulation work throughout the year related to many important events in many different areas but 2003 was also marked by certain events or files of particular relevance.
This was true in particular of the extensive work and the many decisions by the Conseil throughout the year in connection with the launch of terrestrial digital television (TNT) which enabled it to set in December according to schedule the date for the start of the TNT channels’ programs which shall take place between 1 December 2004 and 31 March 2005.
Hertzian local television was also on the agenda of many plenary meetings of the Conseil : first of all two opinions were issued at the government’s request. The first one was issued in May on a pre-bill to modify the legal framework applicable to local channels and the second was issued in July and related to two draft décrets relating to the broadcasters’ obligations in terms of advertising, sponsoring and teleshopping. In addition, the Conseil pre-selected two operators and negotiated with them legal agreements for the operation in time share of an analogue frequency in Nantes, and licensed two new channels, in Loire and in Haute-Provence. It also organized a consultation in order to collect the views of potential candidates on the use of analogue frequencies in eight areas and used the responses to set a schedule for the launch of three waves of calls for tenders, the first of which took place in November.
Another great area of concern is the potential access by minors to programs not suitable for children under eighteen years of age and in particular to pornographic programs. The Conseil, therefore, strengthened the precautions to be taken for their broadcasting by, adopting a deliberation setting forth the principles which will henceforth govern its review of the broadcasters’ requests to broadcast such programs and, by adopting a few months later a recommendation on requirements in terms of locking and controlling access to such programs and in terms of their commercialization.
2003, was also the year during which advertising on television was opened to several industries that had hitherto been banned therefrom after an opinion in connection therewith was rendered by the CSA. The CSA then issued two recommendations in such respect.
Finally, in May, at the government’s request, the Conseil issued an opinion on the bill incorporating into French law the “telecoms package” made up of six directives and one decision by the Council of Ministers of the European Union and the European Parliament which set forth the legal framework to apply to electronic communications.
Terrestrial digital television (TNT)
The deployment of terrestrial digital television had already progressed through many stages in 2002 and 2003 was an equally important year in this respect. The call for tenders process launched on 24 July 2001 was completed and twenty three agreements were entered into with those broadcasters selected for TNT – of which twenty new ones and three supplemental agreements to the agreements of TF1, M6 and Canal+. The Conseil was thus able to issue both the licenses to the private broadcasters and the composition of the multiplexes on which the services thus licensed will be grouped.
During the negotiation of the legal agreements, the Conseil paid special importance to the incorporation of the commitments made in the application files which in certain instances had been described in greater details during the public hearings and which had been taken into consideration for the selection of the services. This is the reason why the legal agreements reflect the proposals made by the candidates and in particular those relating to the broadcasting or production of audiovisual and cinema works. The Conseil also exercised great vigilance in connection with the drafting of the provisions relating to the protection of minors.
On the same day, 10 June, the Conseil also granted France 2, France 3, France 5, Arte and La Chaîne parlementaire, the right of use the radio-electric medium to which they have priority access.
The above decisions were followed at the beginning of August by the selection of the multiplex operators by the broadcasters pursuant to the provisions of article 30-2 of the Law of 30 September 1986 as amended. The Conseil then issued licenses as multiplex operator to the four companies thus selected by the broadcasters : Nouvelles télévisions numériques (R2 Network), Compagnie du numérique hertzien (R3 Network), Société opératrice du multiplex R4 (R4 Network), SMR6 (R6 Network).
Licenses could not be issued on such date to the operators of the other two multiplexes (R1 and R2) and had still not been issued at the end of 2003. The CSA was informed on 17 December only of the destiny of the three frequencies that had been preempted by the government for the benefit of France Télévision and was therefore unable to make a decision in terms of allocation for want of any indication on the services to be selected under such preemption right. On such date, the Minister for Culture and Communication informed the Conseil that the government only wished to keep one out of such three preempted frequencies but did not specify the allocation thereof. In the same letter, the Minister also requested that all public channels be grouped on the same multiplex for purposes of consistency and technical ease.
The technical operations implied by the implementation of the TNT broadcasting network progressed according to schedule throughout the year. Work was done both in the area of digital frequency allocation and the restructuring of certain analogue frequencies. As regards digital frequencies, the Conseil issued on 10 April the list of frequencies identified in 15 new areas to which 14 additional ones were added 19 December. 88 have now been identified out of 110. Thanks to this new allocation phase, the potential coverage rate of the French population has now reached 68 % ; the final objective is to cover between 80 % and 85 % of population from the 110 broadcasting sites planned.
As regards the necessary restructuring of certain analogue frequencies, the operations relating thereto have been made easier thanks to the publication on 6 July 2003 in the Journal Officiel of a décret relating to the sharing and pre-financing of the cost of such restructuring. Under such décret, the full cost shall be borne by the broadcasters of terrestrial digital television services.
Thanks to the compound progress thus made in the above areas, the Conseil was able on 19 December 2003 to set the schedule for the launch of terrestrial digital television which should start broadcasting between 1 December 2004 and 31 March 2005. As set forth in the licenses issued to the channels, the precise starting date shall be determined by decision by the Conseil at least six months in advance and such decision shall specify the relevant areas to which such starting date applies. The deployment schedule will also be issued, the objective being to reach coverage of approximately 60 % of the French population in twelve months. The Conseil has also undertaken to issue temporary licenses prior to the starting date so that operations for the pre-deployment of TNT may be carried out.
The success of TNT largely hinges on the selection of commercial distributors. Without them, television viewers would not be offered pay television and the offer of programs on terrestrial digital television would thus be greatly reduced. However, this issue does not directly fall within the remit of the CSA which under paragraph IV of the above-mentioned article 30-2 is only responsible for collecting the distributors’ registration. To this day, several companies have informed the Conseil that they were interested in distributing TNT services to the audience and were reviewing the creation of commercial offers. However, no agreements had been entered into by and between the broadcasters and potential distributors as of 31 December 2003.
It is obvious that for terrestrial digital television to be a success, dialogue between all relevant professionals must take place and, information actions targeting the general public must be undertaken. In such respect, the mission entrusted by the Prime Minister on 11 June 2003 to Mr. Michel Boyon who was replaced in November by Mr. Daniel Boudet de Montplaisir is of crucial importance. Mr. Boudet’s mission is to closely monitor the implementation of terrestrial digital television and in particular to liaise between the various partners. The TNT mission organized 6 meetings between June and December 2003 in which the Conseil, represented by its Chairman and Messrs. Francis Beck and Yvon Le Bars, played an active role.
The TNT mission is in particular responsible for ensuring that special attention is paid to the information of TV viewers in connection with all aspects of terrestrial digital television. For such purpose, it seems necessary that a campaign be launched to explain in detail what the technical advantages of terrestrial digital television will be and that the program offer will be enriched.
The broadcasting of category V programs
Concerned that minors may have access to programs not suitable for children under 18 years of age categorized in the signaling system as V and, in particular, to those of a pornographic nature which have been shown by several official reports to be harmful to young people, the Conseil decided to strengthen in 2003 the precautions to be taken for the broadcasting of such programs.
As it was receiving requests from new operators wishing to offer such type of programs which were hitherto available on a few services only, the Conseil deemed it necessary to set forth a set of rules which would in particular restrict the number of broadcastings. For such purpose, it adopted a deliberation on 25 March describing the principles it will henceforth use to review license requests. Under such rules, only three categories of services may broadcast such programs : cinema channels, scrambled channels having given undertakings to contribute to production similar to those given by cinema channels and pay-per-view services where they guarantee that minors will not be able to have access to such programs.
As previously, category V programs may only be broadcast between midnight and five a.m. and each legal agreement must specify the maximum number of authorized broadcastings per year. For digital broadcasting, the access control device must be equipped with a locking system with a parent code. In order to increase parental control, the CSA would like households receiving services broadcasting programs not suitable for children under 18 to be informed of the risks to minors and to be given the option to receive a version of such services not including such programs.
The Conseil conducted many tests that showed what the shortfalls and weaknesses of the locking devices used by the operators were, and adopted a recommendation on 21 October 2003 requesting channels broadcasting category V programs and distributors marketing them to implement by end of December 2004 a double locking system making it impossible to access such programs without entering a specific four-digit personal number (except 0000) by default, i.e., without the subscriber being directed to do so. Such device must be activated for each new program and must be perfectly in sync with the timing of the program’s broadcasting and may not be disabled.
Such personal number must be used for such programs only, and be different in particular from that used to access pay-per-view services which may be given by parents to their teenage children to access movies which they are old enough to watch or sport events.
The operators must also give subscribers the option to receive such services without the category V programs. As from 1 January 2004, channels broadcasting more than 208 programs per year in this category may only be sold as part of options not including any other services.
The Conseil is well aware that it imposes a high level of technical and commercial constraints to operators which imply both the implementation of technological developments and, information and awareness efforts directed at the subscribers but it believes that it is the only way to permit both the protection of minors, with which the Conseil is entrusted by law, and the broadcasting on television of category V programs.
Hertzian local televisions channels
Two of the opinions issued by the Conseil to the government in 2003 dealt with bills of crucial importance for the future of hertzian local television channels. The first of these opinions was adopted by the Conseil on 27 May and related to the pre-bill approved by the authorities on 31 July 2002 to modify the legal framework applicable to local television channels. The second opinion which was issued on 22 July related to two draft décrets to modify Décret number 92-280 of 27 March 1992 which set forth the general principles governing the obligations of broadcasters in terms of advertising, sponsoring and teleshopping.
Two new local channels received a broadcasting license : AB 7 Télévision in the Loire département and TLP Luberon in Haute-Provence and Luberon. The call for tenders that had been launched in April 2002 for the operation of a frequency in Nantes resulted in the selection on 15 July 2003 upon completion of the review and public hearing process of two television projects which will operate the frequency in time-share : TV Nantes Atlantique, a company, and Télénantes a non-profit organization (association) licensed for a maximum daily airtime of five hours. It is to be underlined in this respect that the CSA had never before 2003 pre-selected a legal person organized under the law of 29 July 1901 relating to non-profit organizations (associations) for the operation of a local television service to be broadcast in analogue hertzian terrestrial mode. Non-profit organizations (associations) have been allowed to apply for licenses to operate such services since the passing of the Law of 1 August 2000.
During the first semester of 2003, the Conseil carried out a further review of the terrestrial analogue medium’s availability and was thus able to make an inventory of new areas in which calls for tenders may be launched.
With such inventory made, the Conseil decided to consult potential candidates for the use of analogue frequencies. On 18 March 2003, it thus conducted a consultation relating to the technical characteristics of eight new zones : Le Mans, Montpellier, Marseille, Lille, Angers, Nîmes, Orléans and Tours, in which calls for tenders could be launched. The organization of calls for tenders is subject to the fulfillment of two conditions : availability of an analogue frequency compatible with the deployment objectives of terrestrial digital television, and request by an identified legal person of the launch of a call for tenders. Upon completion of the procedure, forty-three responses had been sent by twenty-five non-profit organizations or companies expressing an interest in using analogue frequencies.
The Conseil reviewed in July 2003 all comments made with respect to the eight relevant areas. On 30 September 2003, it issued a schedule for the possible launch of calls for tenders in these various areas based on the technical analysis of the proposals made and taking into consideration the legal and regulatory reforms relating to local television channels, in particular those relating to changes to the anti-trust provisions introduced by the bill on electronic communications deliberated by the Council of Ministers of 30 July 2003.
On 1 October 2003, the Conseil announced the launch in three tranches of the calls for tenders : the first one to take place before the end of November 2003 for Montpellier, Nîmes and Marseille ; the second one before the end of January 2004 and third one before the end of March 2004 for each of three other cities.
As scheduled, three calls for tenders were launched on 25 November : the first two in Nîmes and Marseille and the third one in Montpellier. Considering that changes to the applicable legal provisions may be introduced during the vote on the bill on electronic communications, the Conseil decided that the tenders’ compliance with the rules relating to mergers in the media would be assessed at the time of issuance of the licenses rather than at the time of submission of the tenders.
Right to advertise on television granted to new industries
2003 was the year during which several industries were granted the right to advertise on television where they hitherto did not enjoy it. Such right was granted under two décrets with respect to which the Conseil’s opinion was sought.
Since 1 January 2003, the press media can buy advertisement on television. Literature publishers may advertise on television services as well but exclusively on those distributed or broadcast via cable or satellite. As regards retail, television advertising is authorized on cable and satellite services and on local television channels save for the advertising of “commercial promotional offers”. Advertising messages for such industry may also be broadcast on national analogue hertzian channels as from 1 January 2007.
Such development necessarily implied harmonization with advertising regulation which is the reason why the Conseil by virtue of its construction authority adopted two recommendations on 19 December 2003 specifying the conditions in which television advertising may be implemented for the benefit of the press media and literary publishing.
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