II. ESTABLISHING IN FRANCE
D. Certain Rules Concerning Some
Specific Fields of Services.
c. Audio-visual Communication
The Statute N° 86-1067 of
September 30, 1986 relating to the freedom
of communication provides created a Commission
Nationale de la Communication et des Libertés
(National Commission for Communication and
Liberties). This commission was replaced by
a Conseil Supérieur de l'Audiovisuel
(C.S.A.) - (Superior Council on the Audiovisual
Industry) under Statute N° 89.652 of January
17, 1989.
According to the principle which
prevails in France and in the EU, Audiovisual
communication is free ; it may only be limited
by reason of a motivation expressly stated
in a statute.
Ordinarily this motivation consists of complying
with human rights principles.
(i) Conseil Supérieur de l'Audiovisuel
(C.S.A.)
The C.S.A. has the following objectives :
- To ensure impartiality, to encourage free
competition, and to foster the broadcasting
of a multiplicity of opinions.
- To promote the French language and encourage
French productions.
- To guarantee the impartiality and independence
of State-owned installations
- To ensure the quality and diversity of programming.
(ii) The Powers of the C.S.A.
The C.S.A. authorizes the use of frequency
bands, it controls their operation and takes
the necessary steps to ensure a proper reception
of the signals.
The procedure according to which the C.S.A.
assigns the use of frequency bands is determined
by an ordinance.
The use of frequencies for the transmission
of audio-visual or radio communication services
by terrestrial hertzian means is subject to
the technical conditions specified by the
CSA. These conditions are set up according
to criteria defined by the law of September
30, 1986, amended by the law of January 17,
1989.
Ordinances shall fix the rules applicable
to advertising, broadcasting of films and
other audio-visual productions. These rules
shall be established for each category of
audio-visual communication services transmitted
either by terrestrial hertzian means or by
satellite.
The Statute of January 18, 1992 specifies
that a proportion of European audio-visual
productions and the broadcasting of films
must represent 60% of the production diffused
and at least 40% of them must be productions
in the French language.
However, the C.S.A. reserves its rights to
fix the general rules applicable to the preparation
of programs, and to fix the general conditions
for the production of the artistic works broadcasted.
In particular, the C.S.A. fixes the duration
of the authorization. The authorization cannot
exceed 10 years for television services and
5 years for radio broadcasting services.
The operation of audio-visual communication
services broadcasted by hertzian means or
by satellite is subject to special obligations
defined by the C.S.A. and included in an agreement
between the operator and the C.S.A.
These agreements will include:
- the quality and duration of programming
- the honesty and multiplicity of the information
and the programs
- the time allocated to the broadcasting
of French works, primarily during prime
time
- the time allocated for the broadcast of
cultural, educational, and consumer protection
programs
- the broadcasting to French overseas departments
and territories
- the broadcasting of French programs abroad
- the extent of time reserved for advertising.
(iii) Radio and Television Broadcasting by
Terrestrial Hertzian Means
The use of frequencies for the broadcasting
of radio or television services by terrestrial
hertzian means is authorized by the C.S.A.
The procedure is the following one:
For certain predetermined zones, the C.S.A.
publishes a call for candidates seeking to
operate radio or television broadcasting services.
The candidates are either non-profit companies
or associations registered according to the
Law of July 1, 1901.
The candidates must indicate in particular,
the objectives and general characteristics
of the service, the technical characteristics
of the broadcasting, the estimates regarding
expenditure and returns, the origin and the
amount of the financing provided for, as well
as the list of administrators, members of
the Board of Directors and shareholders.
The C.S.A. finalizes a list of frequencies
which can be allotted within a given zone
in consideration of the various applications.
The Council issues the authorization after
studying and assessing the value for the public
of each project, with respect to the following
three main priorities:
- the protection of the multiplicity of
socio-cultural expression
- the diversification of operators
- prevention against the abuse of a dominating
position in the market, or unfair competition.
It also takes
into account, for both radio and television
license applicants:
1 - the experience acquired by the candidate
in the field of communication;
2 - the financing, the profitability of
the service, and whether the advertising
resources will be well distributed between
the newspaper companies and audio-visual
or radio communications services;
3 - the direct and indirect share held
by the candidate in the capital of one or
more state-controlled advertising companies
or in the capital of one or more newspaper
publishing companies;
4 - the commitments of the candidate, regarding
the broadcasting of French works, that are
being broadcasted for the first time in
France.
and for television
licenses applicants only:
5 - the broadcasting of educational and
cultural programs;
6 - the involvement in educational and cultural
activities;
7 - the contribution made to the broadcasting
of television programs in French overseas
territories;
8 - the contribution made to the broadcasting
of a television program in foreign countries;
9 - the financial contribution made to the
film and audio-visual industries.
The use of frequencies for satellite radio
and television broadcasting is authorized
by the C.S.A., according to procedures established
by ordinance. The authorizations can be issued
only to companies.
(iv) Radio Broadcasting and Television Distributed
by Cable
Towns or groups of towns may install or authorize
the installation of networks on their territory
for the distribution by cable of radio and
television services.
However, the statute N° 96-299 of April
10, 1996 which refers to experiments in technological
and information field provides impairments
to the existing statutes.
By and large, this text permits the realization,
under specified conditions, of experimental
projects such as Digital Television broadcasted
by Hertzian Terrestrial means and broadcasting
by microwave multiunit distribution system.
In such circumstances, the CSA is entitled
to grant authorizations without proceeding
to a call for candidates.
The system is much more conventional than
the former in order to adjust the legal conditions
to these new technologies which involve the
broadcasting of numerous services through
only one frequency.
These networks must comply with the technical
specifications set by the C.S.A.
The operation of the networks thus established
is authorized by the C.S.A. upon a petition
by a town or a group of towns. This authorization
can be issued only to companies. It indicates
the number and the nature of the services
to be distributed, and can mention certain
obligations of which it defines the conditions.
These obligations concern one, or more, of
the following:
1 - The retransmission
of programs broadcasted by hertzian means
normally received in the zone.
2 - Broadcasting of a minimum number of their
own programs.
3 - The allotment of a channel reserved for
local news and information concerning the
town, to the town, or the group of towns concerned,
on a full-time or part-time basis.
4 - The payment of a tax to the town or group
of towns by the operating company.
An ordinance establishes:
1 - The rules regarding the duration of
the authorization
2 - The general rules concerning the schedule
of programs
3 - The general rules for the production
of the works broadcasted
4 - The rules applicable to advertising
5 - The hours of the films and audio-visual
works broadcasted
(v) Rules Applicable to all Services Which
are Subject to Authorization
The law establishes certain guidelines in
order to ensure a multiplicity of views:
Television by Hertzian Terrestrial Means
The same individual or legal entity cannot,
directly or indirectly, hold more than 25%
of the capital, or of the voting rights of
a company having an authorization to operate
a national television service by hertzian
terrestrial means.
Where an individual or a legal entity holds
more than 15 % of the capital or the voting
rights of a company which holds such an authorization,
it cannot hold more than 15 % of the capital
or of the voting rights of two companies having
such an authorization; it cannot hold more
of another company having a similar authorization.
Firthermore, where an individual or a legal
entity holds more than 5 % of the capital
or of the voting rights of two companies having
such an authorization it cannot hold more
than 5% of the capital or the voting rights
of another company having a similar authorization.
Television by Satellite and Television Transmitted
Through Frequencies Attributed to Radio Broadcasting
An individual or a legal entity cannot hold,
directly or indirectly, more than 50 % of
the capital or of the voting rights of a company
having an authorization regarding a television
service which is broadcasted exclusively through
frequencies attributed to radio broadcast
and to television by satellite.
Where an individual or a legal entity holds,
directly or indirectly, more than a third
of the capital or of the voting rights of
a company having such an authorization, it
cannot hold more than a third of the capital
or of the voting rights of another company
having a similar authorization.
Furthermore, where an individual or entity
holds more than 5 % of the capital or voting
rights of two companies having the authorization
mentioned above, it cannot hold more than
5% of the capital or of the voting rights
of another company having a similar authorization.
Capital held by Foreigners
A French national cannot carry out an acquisition
which will result, directly or indirectly,
in foreigners holding more than 20% of the
registered capital or voting rights of a company
having an authorization regarding radio broadcasting
or television service in the French language
through hertzian terrestrial means.
In an European perspective,
the broadcasting of television programs is
submitted to the "Home Country Control"
principle whereby a program regularly authorized
in a Member State must be received in the
other Member States without any additional
control.
