Deliberation n° 2007-167 of July 24th, 2007 relating to the classification of the television services in the offers of programs of the distributors of services on electronic communication networks not using frequencies assigned by the Superior council of the audio-visual one
On the base of the provisions of article 17-1 of the law of the modified September 30th, 1986 relating to the freedom of communication, the Superior council of audio-visual was received, in 2006, of fourteen requests for regulations of disagreements concerning the classification of television services in the offers of programs of distributors of services on electronic communication networks not using frequencies assigned by the Council. These litigations clarified the acuity of the problems of classification in the relations between editors and distributors.
The present deliberation, taken on the base of article 3-1 of the law of September 30th, 1986, has the aim of specifying the obligations to which the distributors of services are subjected not using frequencies assigned by the Council as regards the classification of the television services diffused in digital mode.
I - Legislative measures applicable to classification
Article 3-1 of the law of September 30th, 1986, as modified by the law of March 5th, 2007 relating to the modernization of the audio-visual diffusion and on television of the future, lays out that the Council takes care “of the equitable character, transparent, homogeneous and nondiscriminatory of the classification of the television services in the offers of programs of the distributors of services”.
The conditions of classification of the television services in the commercial offers made on electronic communication networks not using frequencies assigned by the Council are also controls by article 34 of the same law, under the terms of which: “the Council can, by decision justified taken in time allowed by way lawful (1), to oppose either to exploitation of service offering, or with modification of composition of this offer, if it estimates that it satisfies not with conditions and obligations with present law, in particular those mentioned with articles 1st, 3-1, 15 and 34-1 to 34-3, or if it estimates that it undermines the public service missions assigned by article 43-11 to the national companies of program and the Arte chain, in particular by the classification allotted to the service in the commercial offer.”
II - Relevance of the organization of the plans of television services by sets of themes
Taking into consideration challenge of classification, clarified in appendix, the Council privileges the principle of the organization of the plans of services by sets of themes.
At the time as of parliamentary debates on the relative bill with modernization of the audio-visual diffusion and the television of the future, the legislator affirmed his attachment with this principle, by evoking the need for constituting “coherent blocks and sets of themes of chains”.
The Council estimates that the organization of the plans of services by sets of themes is in conformity with the interest of the televiewers, insofar as those choose the program which they wish to look above all compared to a kind of contents, for example information, the sport or the cinema.
A set of themes thus gathers chains which are in competition for the same public. An organization of the plans of services by sets of themes, by facilitating the passage of the televiewers from one chain to another, allows the editors presenting of the similar contents to deliver a honest competition.
Lastly, the principle of the organization of the plans of services of the distributors by sets of themes corresponds to a usual practice in much of country.
III - Principles applicable to the organization of the plans of services
Within the framework of an organization of the plans of services by sets of themes, several practical difficulties related to classification can be posed in the relations between the editors and the distributors.
Thus, a dissension can result from a positioning considered to be inadequate of a chain in a given set of themes. This situation is likely to prevent an editor from meeting his public. It can result from a lack of transparency on the principles which the distributor implements to prepare its plan of services. Another dissension can come from a ranking considered to be inequitable or discriminatory of the chains within a set of themes. It can also result from a lack of clarity in the rules which govern this ranking.
Within sight of these difficulties, the present deliberation specifies the legislative measures according to three axes:
- How to define the sets of themes and how to order them?
- How to judge membership of a chain to a set of themes?
- How to order the chains within a set of themes?
With - Definition and scheduling of the sets of themes
The distributors can freely define the sets of themes of their plan of services.
However, in order to guarantee the homogeneous and transparent character of classification, the distributor must publish the definition of the sets of themes which compose its plan of services, mainly taking into consideration format of the chains which have authority to appear in it.
It can take as a starting point the sets of themes (2) defined by the Council, in particular in the assessments of the chains published by this one. It can create a set of themes “chains local”.
The distributor can also create a specific block devoted to the temporary promotion of certain services, within the framework of its sales strategy.
Any modification of the list of the sets of themes or their definition must be the object of a public communication, for example by publication on the website of the distributor, with a one month notice in order to guarantee the transparent character of classification and to make it possible to the editors to formulate their possible observations.
Creation of a “block DVB”
The legislator envisaged specific measures in order to guarantee the exposure of the chains of digital terrestrial television (DVB). Article 34-4 of the law of September 30th, 1986 lays out: “Without prejudice to articles 34-1 and 34-2, any distributor of services makes right, under equitable conditions, reasonable and nondiscriminatory, at the requests of the editors of television services not calling on remuneration on behalf of the users and whose diffusion is authorized in accordance with articles 30 or 30-1 tending, on the one hand, to give access, for the reception of their services, with any terminal used by the distributor for the reception of the offer which it markets and, on the other hand, to ensure the presentation of their services in the tools of referencing of this offer.”
If the organization of the plans of services by sets of themes corresponds to the interest of the televiewers, those can wish that the chains of the DVB be gathered in a homogeneous block. Indeed, for some of them, that would make it possible to find the chains such as they are presented in most magazines of television. Others, in particular those which migrated of the offer of the DVB to a paying television offer not using frequencies assigned by the Council, would find the classification which was familiar for them.
Consequently, the Council estimates desirable that the distributor sets up a “block set of themes DVB”, gathering in a homogeneous continuation the chains of the DVB free, present in addition in the service offering in the adapted set of themes. Within this block, the distributor must respect the order of the logical classification defined by the Council. This block must be easily accessible to the televiewer in the plan from services.
B - Determination of the membership of a chain to a set of themes
In order to guarantee the homogeneous character, equitable and nondiscriminatory of classification, the distributor must be able to communicate on request with the Council the reasons which lead it to place a chain in one of the identified sets of themes.
These reasons must be based on objective criteria and quantifiable in comparison with the programming of the chain or its convention with the Council in order to make sure of the respect of the obligations posed in article 3-1 of the law of September 30th, 1986.
In the event of dissension between the editors and the distributors, the Council can be seized on the base of the provisions of article 17-1 of the law of September 30th, 1986 relating to settlement of disputes.
In an objective of transparency and equity of the classification of the services, any modification of the membership of a chain to a set of themes must be communicated by the distributor with the editor with a one month notice, except agreement of the parts on a different time. The distributor must communicate the reasons which justify this change of set of themes.
C - Scheduling of the chains within the sets of themes
To guarantee the homogeneous character, equitable and nondiscriminatory of classification, the distributor must communicate the principles of scheduling of the services within a set of themes.
It is held to be based on certain objective and verifiable criteria of scheduling, for example:
- the anteriority of occupation of the number;
- the audience;
- the logical number allotted by the Council to the editor for the diffusion in DVB;
- the language: thus a distributor would be founded to allot to chains in French language or in one of the regional languages the first numbers of a set of themes;
- notoriety, for example on the base of studies of opinion;
- the alphabetical order;
- the result of a lottery;
- the category of public aimed;
- the basin of diffusion.
These criteria are classified by set of priorities of application and, in accordance with the requirement of homogeneity given in article 3-1 of the law of September 30th, 1986, they must apply under the same conditions to the whole of the sets of themes.
Any modification of the classification of a chain within a set of themes must be communicated by the distributor with the editor with a one month notice, except agreement of the parts on a different time. The distributor must communicate the reasons which justify this change of classification.
D - Typical case of the classification of the national public channels
The law of September 30th, 1986 gives competences particular to the Council in terms of achievement by the public channels of their public service missions (articles 17-1 and 34).
The distributor must ensure these chains an exposure which enables them to fulfill their public service missions, in the set of themes to which they belong.
IV - Details of implementation of the deliberation
The distributor has a three months deadline as from the publication of this deliberation at the Journal officiel de la République française to conform to it.
For this purpose, it must communicate to the Council a “reference document relating to the classification”, which exposes the principles on which it bases its plan of services in accordance with the present deliberation. This document contains in particular:
- the ordered list of the sets of themes;
- the definition specifies each set of themes;
- criteria of scheduling of the chains within the sets of themes.
It is published on the website of the Council.
Any modification must be the object of a first communication to the Council, with a one month notice.
The present deliberation will be published in the Journal officiel de la République française.
Fact in Paris, on July 24th, 2007,
For the Superior council of the audio-visual one,
(1) Article 11 of the decree n° 2005-1355 of October 31st, 2005 fixes this deadline at one month.
(2) For example, cinema, documentary, music, general practitioner, service, fiction, sport, youth, information, denominational and Community, and armchair shopping.
Challenges of classification
Within a television offer made by a distributor, the services can be accessible from several manners:
- via a mosaic, delivered on a channel of the offer, simultaneously presenting reduced images of the whole of the services of the offer;
- using an electronic guide of the programs, interactive application which gives access the chains according to their set of themes or their programming, and to possibly carry out research on these elements;
- directly by a course in the plan of services: the user can either seize the number of the service directly, or to reach the immediately adjacent services with the chain which it looks at.
It seems that the direct access by classification constitutes in France the access road privileged to the television services. In that, the French situation differs, for example, of that of the United Kingdom, where the use of the electronic guide of the programs appears more widespread.
The question of the classification and the organization of the plan of services of a distributor is thus likely to have important repercussions on the activity of the various actors, in what it conditions the access of the televiewers to the service offerings of television.
A first analysis of the challenges of the various economic actors reveals sometimes divergent interests:
- for the televiewer, the challenge is in particular to reach the chains of its choice with facility;
- for the editors, classification must make it possible to find the public broadest possible and to present a character of stability;
- for the distributors, classification must contribute to the sales strategy, while making it possible to adapt the offer to waitings of the subscribers and to maximize the exposure of the affiliated chains.
In addition, several aspects of classification present a complex character and are likely to require a deepened investigation, in particular:
- technical requirements of implementation of classification;
- impact of classification on the audience and the saving in a chain;
- the place of classification in the relations between editors and distributors;
- impact of the evolution of the access modes to the services in the paying offers.
1) Technical constraints of implementation of classification
In DVB, the classification of the services, known as “logical classification”, must appear in the diffused signal. This operation is described in particular in the following reference documents:
- decree of the terrestrial hertzian modified December 24th, 2001 relative on television digital, fixing the characteristics of the emitted signals;
- decree of the modified December 27th, 2001 relating to the characteristics of the equipment of reception of the services diffused by terrestrial digital hertzian way;
- standard IEC/CENELEC 62216-1, in particular its paragraph 9.4.4 relating to the logical numbers of chain.
On the other hand, the technical systems of implementation of classification are not publicly known for the platforms of the cable and the satellite. Nevertheless, taking into consideration information available to the Council, it seems that the operation of these platforms is similar. This system offers a certain flexibility as for the evolution of classification.
Thus, the principal technical constraint for classification seems to be the material capacity of the decoders. From this point of view, the parks of decoders of the distributors are characterized by the coexistence of various generations of equipment, with the unequal capacities, like by a certain uncertainty concerning the renewal of the various generations.
These material constraints could limit the possible implementations of a plan of services and restrict, for example, the possibilities of personalization of the plans of classification by the user.
2) Impact of classification on the saving in a chain
Classification is of a particularly important nature for the chains, in particular by the importance of its economic repercussions.
It conditions the exposure of a chain near its potential televiewers. More particularly, certain characteristics would be likely to influence the audience of a chain:
- positioning in a set of themes corresponding to the programming of the chain, or, contrary, in unsuited set of themes;
- positioning in first tens of the plan of services;
- the “ergonomics” of the number, i.e. its facility of seizure on a remote control, like its simplicity for a possible memorizing by the user;
- proximity of a chain with strong audience;
- possibly, the presence of particular services in the vicinity, such as the mosaics or the video services with the request which stop the course of the televiewer in the plan of services.
In addition, the stability of classification seems to play a significant role: a stable classification makes it possible to the televiewer to find the service with more facility.
3) The place of classification in the relations between editors and distributors
The classification of a chain on a platform is a particular element of the relation between an editor and a distributor.
Taking into consideration information available to the Council, it appears that classification is generally not registered in the contracts of distribution. According to the distributors, it would thus not be the object of a negotiation, nor of a remuneration on behalf of the editor. In the same way, it would generally not be envisaged a notice in the event of change of classification, which would not have to be the object of a justification.
4) Impact of the evolution of the access modes to the services in the paying offers
The Council notes, in several European countries, in the United States and in Asia, the increasingly broad recourse to the electronic guides of the programs.
Thus, British regulator, the OFCOM, was brought to publish a code of conduct relating to the practices of the distributors on the electronic guides of the programs.
In addition, the problems of presentation of the offer of a distributor on the various tools of referencing, such as the electronic guides of the programs and the mosaics, are similar to those which are posed by the organization of the plan of services, and more particularly of the classification of the chains. Thus, the services in a mosaic are generally classified according to their number in the plan of services and the electronic guides of the programs gather the services by sets of themes in general.
If the trend noted abroad were to spread in France, the issues raised at present by classification could thus persist on these other access modes.
Consult the page of the Official journal.