Opinion n° 2006 - 2 of March 1st, 2006 on the bearing decree project modification of the specifications of the companies France 2, France 3, France 4, France 5, Network France Overseas, Radio France and Radio France international
Seized for opinion, pursuant to article 48 of the law n° 86-1067 of the modified September 30th, 1986 relating to the freedom of communication, of a bearing decree project modification of the specifications of the companies France 2, France 3, France 4, France 5, Network France Overseas, Radio France and Radio France Internationale, the Superior council of audio-visual, after having deliberated on it, formulates the following observations:
1. Relative tendencies with social cohesion and the fight against discriminations
First of all, the Council is pleased that the decree project introduces into the specifications of the companies France 2, France 3, France 4, France 5, Network France Overseas, Radio France and Radio France Internationale the objective to support social cohesion and the fight against discriminations like a series of provisions being attached to it.
More precisely, the Council takes note with interest of the catch in consideration of its previous requests relating to insertion of a provision forcing the audio-visual services of the public sector to take into account, following the example of private channels, “in the representation with the antenna”, “the diversity of the origins and the cultures of the national community”.
Indeed, the Council had estimated on several occasions that the provisions appearing in the books of the missions and the loads, rather than to limit itself to the promotion of the various cultures constitutive of the French company and to the fight against discriminations, “should be aligned on the drafting negotiated by the Council with the private channels”.
In second place, the Council notes that the decree project reinforces, for the audio-visual services of the public sector, the existing device for the private channels by adding new obligations:
- to take care that the programs give the most realistic possible impression of the French company in all its diversity;
- to give a special attention to the treatment the antenna of the various components of the population, while taking care to refer to the origin of the people only when that is necessary to the comprehension of information;
- to promote the values of a shared culture and a good citizenship.
As regards the absence of reference at the origin of the people, except when that is necessary to the comprehension of information, the Council draws the attention of the Government to the difficulties of interpretation and application of this provision, which were expressed by the draftings of the national companies of program and which the authority of regulation in the control of its implementation could meet.
2. Obligations applicable to the company Network France Overseas
a) Actualization of several obligations applicable to the programs of Network France Overseas
The Council is pleased that the decree project brings up to date in the specifications of Network France Overseas several obligations applicable to the programs of this company, following the example of other public channels (article 15 relating to protection with the minors; article 17 relating to the adaptation of the programs bound for the deaf and deaf people; article 18 relating to the requirements of the national defense and security of the population).
The Council notes also with satisfaction that the mode applicable to the diffusion of the advertisements for the service France Ô is identical to that of the other metropolitan public channels (article 27).
b) Harmonization of the mode of the obligations concerning the diffusion and the production of audio-visual and cinematographic works
The Council points out that it considers it desirable to make applicable to the communities overseas several decrees (decree n° 90-66 of January 17th, 1990 relating to the diffusion of works, decree n° 2001-609 of July 9th, 2001 relating to the development of the production of cinematographic works and audio-visual for the TV channels hertzian by analogical terrestrial way in light) now applicable in the only overseas departments.
As regards RFO, the Minister for the Culture and Communication had indeed indicated to the Council, in his mail of November 25th, 2003, that the decree n° 90-66 applied to RFO in metropolis and in the overseas departments, but not in the communities of overseas.
The harmonization of these modes would make it possible to subject the whole of the antennas of RFO to obligations which seem to fall under their public service missions.
c) Must carries of audio-visual works
The Council takes note with interest which the decree project provides a relative tendency with the diffusion of audio-visual works by the services published by RFO.
It estimates nevertheless desirable that the specifications of the missions and of RFO are more explicit on the obligations put at the load of this company on the matter, in particular on its obligation to respect the must carries of audio-visual works appearing in article 13 of the decree n° 90-66.
d) Must carries of cinematographic works
The Council considers it regrettable that the decree project does not envisage the methods of diffusion of cinematographic works.
Indeed, article 70 of the law of the modified September 30th, 1986 lays out, in its second subparagraph, that the relative tendencies with the diffusion of cinematographic works must be included in the specifications of the missions and of companies mentioned in article 44, which includes RFO, and that these provisions must fix:
- an annual maximum number of diffusion and repeat broadcasts of cinematographic works of long life;
- obligation to devote in these diffusions, in particular at prime times, of the proportions at least equal to 60% with cinematographic works and proportions at least equal to 40% to works of French original expression;
- the schedule of programming of cinematographic works of long life.
The Council thus estimates necessary that the specifications of the missions and of RFO are more explicit on the obligations put at the load of this company on the matter, in particular on the respect of the must carries of cinematographic works appearing in article 8 of the decree n° 90-66.
e) Obligations of production
The Council deplores that the decree does not introduce any relative tendency with the contribution of RFO to the production of audio-visual and cinematographic works.
Indeed, in accordance with the article 1st of the decree n°2001-609 of July 9th, 2001, RFO, as a national company of program subsidiary of France Televisions, is subjugated with this decree concerning its antennas of the departments and regions of overseas.
The Council thus estimates necessary that the specifications of the missions and of RFO are, there still, more explicit on the obligations put at the load of this company on the matter.
f) Provisions relating to France Ô
The Council takes note of what the decree project brings to the specifications of the missions and of the company Network France Overseas the precise details necessary to the diffusion, on the metropolitan territory, by terrestrial hertzian way in digital mode of its television program France Ô.
The CSA wonders about the compatibility of the project of decree with the law of September 30th, 1986, insofar as article 44 of the law fixes like obligations of public utility to RFO a diffusion overseas and not in metropolis.
Moreover, it observes that, such as the modification is written, it gives a right of priority to the service France Ô on the whole of the metropolitan territory.
As regards zones of diffusion concerned, the Council wishes to draw the attention of the government to the need, to allow the organization of calls for candidate for local televisions by terrestrial hertzian way in digital mode, in good time to know the list of the sites for which the right of pre-emption could be exerted.
The Council also notes that the service France Ô is not held with obligations of contribution to the film production and the audiovisual production taking into account the nature of its programming.
It notes in particular that article 32-2 of the decree project provides that the service France Ô must devote less than 20% of its time with the diffusion of audio-visual works, which exonerates it these obligations of contribution to the audiovisual production.
The Council observes that the application of this provision will require a refitting of the grid of programming of France Ô since today it goes beyond this threshold of 20%.
g) Right of repossession of the programs of TF1
The Council takes note with interest which the decree project envisages to insert in the specifications of Network France Overseas an installation into its right of repossession of the programs of company TF1.
Indeed, it had estimated on several occasions desirable that the free recovery by RFO of the emissions of TF1 ceases, source of conflicts with private local televisions, unless it relates to events of major importance whose no local chain would ensure the retransmission under satisfactory acceptance requirements.
The Council had thus questioned the Minister for the Culture and Transport, in its mail of September 20th, 2005, on opportunity of maintaining the mode priority whose RFO under the terms of article 62 profits from the law of the modified September 30th, 1986, in particular in the zones where private local televisions are present.
However, the Council wonders about the effectiveness of this installation which provides that for the resumption of the programs of company TF1, RFO informs beforehand the television services local diffused in light by terrestrial hertzian way in the geographical zone concerned of its intention to repeat these programs and that it can exert its faculty of recovery only if these editors did not inform it to have acquired the rights of diffusion within a period of three weeks as from their information by company RFO.
Indeed, this provision does not expect that one simple duty of information of RFO towards the private channels, without is specified that private local televisions have priority with respect to RFO.
Moreover, the Council notes that this provision does not state that within three week following the request for RFO to deprived local televisions, those are in right to acquire the programs considered.
It thus estimates that she does not give a fully satisfactory answer to the problems which it had raised, particularly in the case of a program for which TF1 would wish not to immediately raise exclusiveness after its diffusion, RFO, by the use of its right of pre-emption, having the possibility of diffusing it, even into simultaneous.
3. Various observations
The Council is pleased that the decree project envisages to introduce into the preamble to the specifications of France 2, France 3, France 4 and France 5 and within a new article for Radio France, Radio France Internationale and Réseau France Overseas, the mission of giving a special attention to the relative questions with the environment and sustainable development. In addition to the interest which the Council carries to the public awareness campaign on the subjects relating to the environment, the Council notes that article 6 of the Charter of the environment provides that “the public policies must promote a sustainable development”.
However, the Council considers it regrettable that the decree project does not take again certain requests which he had previously formulated. First of all, the Council recalls that it esteem necessary to reinforce the ethical obligations of the public channels in order to align them on the stipulations negotiated with the private channels. Thus, the insertion of relative tendencies to the control of the antenna, the framing of the emissions which calls on the participation of the public, the pluralism and the honesty of information as to the legal procedures would make it possible to take care more effectively of the respect of the ethical requirements by the diffused emissions.
In addition, the Council points out that France 5 should be subjected to the must carry in first part of evening of European new works and original expression since it has by digital hertzian way a diffusion 24 hours a day. Thus, the decree n°2001-609 should be modified consequently not to more exclude France 5 from this obligation and its specifications of the missions and should envisage the possible modulation of it, since this chain not chose the general scheme of 16% of its turnover devoted to the production but the optional mode which enables him to begin beyond 16%.
Lastly, the Council considers that the must carry of the emissions of direct expression should also fall on France 5 pursuant to article 55 of the law of the modified September 30th, 1986 since the company France 5 became a national company of program. Indeed, in the prolongation of the modification of its specifications in June 2003 which registered the obligation there to diffuse the emissions of the official countryside and so that the chain can contribute to the political and trade-union expression, the Council considers it desirable to fix the obligation to diffuse emissions of direct expression.
These opinion will be published in the Journal officiel de la République française.
Fact in Paris, on March 1st, 2006
For the Superior council of the audio-visual one,