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2009, the CSA deeply involved
in the digital revolution and its challenges:
Assessment and Outlook
The CSA’s work now takes place in a new broadcasting environment undergoing far-reaching change: it is an entirely digital environment, it is both linear and non-linear, access is free or for a charge, and all media now offer broadcasting content. Regulation has adapted to these rapid shifts, so as to take into account new technological and economical challenges, as well as the industry’s, and the public’s, expectations.
2009 was the year of the true switch-over of broacasting to digital. The expansion of digital terrestrial television continued: almost 90% of French households can now access DTT through a roof aerial; almost 45% of French households have the requisite equipment to receive DTT by means of their roof aerial; more than 70% of French households can receive digital TV channels, whatever the reception means. The first digital switch-over pilot projects – in Coulommiers on 4 February, Kayersberg on 27 May, and Nord-Cotentin on 18 November 2009 – were successful. They paved the way for the switch-over of the Alsace région in February 2010.
The Conseil pays special attention to ensure that the digital switch-over process not create any divide. The law of 17 December 2009 to combat the digital divide is a great step forward: it lends a legal basis for all actions taken by the CSA to guarantee minimum DTT coverage in each and every French département; it makes information about anticipated digital coverage, or what to do to ensure continued reception, more accurate; it makes criteria to receive aid from the fund for dish aerials equipment more inclusive. The Government had already announced policies along these lines to combat any geographical divide caused by social circumstances.
The Conseil remains firm in its commitment to ensure that all areas of France, and all inhabitants, benefit from the digital revolution. On 26 August 2009, the French Government issued an ordonnance (order) to extend and adapt to France’s outre-mer (overseas départements and territoires) all provisions relating to DTT. A large part of the order followed recommendations made by the Conseil.
Digital territorial development is also achieved through local television development. To help overcome difficulties, the Conseil decided on 24 March 2009, to review several policies to help operators reach financial stability: temporary softening of rules governing first broadcasts, greater synergies between channels, national and regional syndication of programmes, broadcasting on cable or ADSL, creating ties with major sports teams, or, as allowed under the law of 12 June 2009, early analogue switch-off. The recent involvement of audiovisual groups and local authorities bodes well for the future of local television. In 2009, the Conseil issued calls for tenders relating to five new areas.
Ensuring development of digital innovation was one of the Conseil ’s primary concerns in 2009. The Conseil’s role is to provide opportunities for new technologies, as was the case in 2002, when the French government asked the CSA to implement DTT. The same is true today in relation to personal mobile television: it is something that must be tried as it meets needs and expectations expressed by the public. At the end of September 2009, all selected editors had signed and returned their legal agreements (conventions) with the CSA. A further stage was reached in April 2010, when the CSA issued broadcasting licenses. All partners in the project are now working to finalize the business model.
The Conseil also favours the development of innovative services enhancing ondemand consumption of audiovisual programmes: a DTT electronic programme guide, associated data on television and radio, and interactive services such as catch-up TV and video on demand. A public consultation was opened in this regard on 23 June 2009.
Pursuant to the law of 5 March 2007, the CSA has issued a call for tenders for digital terrestrial radio. Radio cannot not join in broadcasting’s current general digital switch-over. Digital terrestrial radio means greater quality, truly national coverage, and associated data. On 26 April 2009, the Conseil selected the first digital terrestrial radio projects for Paris, Marseille and Nice, i.e., 15% of the French population. This results in a supply increase in these areas with innovative projects in all radio categories.
In-depth reflection is currently under way, in conjunction with operators, regarding digital radio implementation. Various issues are being broached and, in particular, financial, and technical, issues. It is important. Yet, digital terrestrial radio can only be a success where the industry takes a pro-active stance, and public authorities make a strong commitment. They are a prerequisite to the Conseil issuing licenses and proceeding with the calls for tenders.
The Conseil also wishes to anticipate the future of a fully digital broadcasting world. On 23 June 2009, it opened a public consultation on the proposed future for digital broadcasting, and on the possible usage of airwaves freed by two off-air digital pay services. Broadcasting supply will be richer in 2012 than it is today, as further multiplexes will be freed by analogue switch-off. In 2009 already, the issue of how to use freed airwaves had to be addressed following the switch-off of two pay DTT channels. Supplemental channels will be available to analogue channels. DTT expansion may also be envisaged, in particular, high definition broadcasting. The Conseil’s task is to anticipate these possible developments, taking on board the views of all industry professionals.
In a fully digital broadcasting world, all aspects of the Conseil’s regulatory activity must include non-linear services. The law of 5 March 2009 sets forth the general framework relating to the regulation of on-demand audiovisual media services, the practical implementation thereof, being left to the Conseil.
As broadcasting expands, the public calls for regulation on all media. Society’s expectations in respect of broadcasting multiply: not only do they include pluralism, ethics, and youth protection; they also include programme accessibility for those with disabilities, society’s diversity being reflected, and obesity being combated. In 2009, the Conseil took decisive action on these fronts.
On 21 July 2009, the Conseil adopted a new pluralism principle to govern, as from 1 September 2009, the balance of politicians’ speaking time on television and radio. The principle has been simplified, and remarks by the President of the Republic regarding national political issues are now taken into account.
Regarding information ethics, the Conseil dealt with 76 cases of failures, in 2009, up from 35, in 2008. The increase is striking but so is the nature of failures on the channels’ part: the unchecked use of web images was one of the main reasons why the Conseil had to step in. This shift should not be ignored. The Conseil also reviewed means available to combat racism and anti-Semitism in the broadcasting media. At the beginning of 2009, following a period of conflict in the Middle-East, the Prime Minister asked the CSA to take stock, and make proposals, in this respect.
 2009 was a particularly rich year as regards accessibility. Sub-titling progressed towards the objective of making it a general rule in 2010, and public authorities introduced specific provisions in the law of 5 March 2009 setting forth obligations in terms of audio-description.
Following the 2008 study on the portrayal of diversity on television, several steps were taken to involve the entire broadcasting industry. Conversations between the Conseil and channels continued, resulting in the creation of a refined methodology for the half year diversity index, and in the adoption of a Conseil deliberation dated 19 November 2009, setting forth commitments to be made by each editor, and monitored by the Conseil, while respecting their editorial line and their freedom to create broadcasting works. Such commitments obviously relate to what is shown on air by channels, but also to how programmes are ordered and produced, and to raising awareness on the part of persons in charge of information and programmes. The principle of annual commitments has been included in each channel’s legal agreement (convention) with the Conseil, and channels have provided the Conseil with their first commitment letter (lettre d’engagements) in relation to 2010. The Conseil will monitor compliance with such commitments very closely, and a specific stock taking exercise will take place. These tools will enable the Conseil to fully fulfil the objectives for which it is responsible under law, i.e., guaranteeing social cohesion, and ensuring that all French citizens feel television reflect who they are.
 In 2009, health played an increasing part in French society’s expectations regarding broadcasting regulation. The Conseil’s work reflected this development: it set forth the conditions for the broadcasting of health-related announcements during the swine flu epidemic, implemented the Charter to promote a healthy diet, and physical exercise, on television, assessed the role of broadcasting in raising awareness regarding sustainable development issues, etc. Today’s world being one of multiple media, all of these societal issues must be considered in relation to all contents, whatever their type.
Regulation by the CSA is content-based. Content creation being one of the engines of the digital economy, that approach seems particularly well-suited. Both in France, and abroad, the Conseil is very pro-active to support creativity on DTT, and on new on-demand services. On 15 July 2009, as part of this effort, it issued an opinion relating to the draft décret modifying the production contribution system applicable to editors of off-air analogue terrestrial television services. The Conseil believes the expansion of broadcasting groups to be an essential condition to the industry’s development. In the Conseil’s opinion, it is nonetheless necessary that there also exist a strong, diversified, and independent, production, and distribution, industry, making it possible for audiovisual works to circulate, and be known, domestically, and internationally. In 2009, the Conseil also addressed the issue of the movement of works, and, again, concluded that free movement was paramount.
Despite the implementation of the décret of 19 December 2008, and of the law of 5 March 2009 under which private editors are allowed a second advertising break during audiovisual and cinema works, advertising revenue continued to decrease in 2009, as a result of the crisis, and to weaken the entire industry. Another significant development in French television advertising is product placement now allowed under the law of 5 March 2009. The conditions in which television programmes may include product placement were set forth by the Conseil in a deliberation adopted on 15 December 2009.
Multiple reviews by the Conseil have shown that French private broadcasting companies have not, as of yet, reached the necessary size to compete on an equal footing with foreign groups. It is essential, however, for the private broadcasting industry to be strong, so that it may support French creativity, and, thereby contribute to the richness of the broadcasting supply, which must also be varied. Concentrations, therefore, must be analyzed, and justified, taking into account the broadcasting environment of today, as opposed to what it was five years ago. Audiences are now fragmented, competition has increased, viewers have changed their ways, telecommunication operators have become new players, and audiovisual content is now broadcast on the Internet. Concentration transactions, therefore, must be assessed in the light of all of these developments.
TF1’s take-over of NT1 and TMC was an opportunity for the Conseil to implement this approach, while ensuring compliance with the fundamental principle of broadcasting pluralism. On 28 September 2008, upon request by the Autorité de la concurrence (competition authority), the Conseil issued an opinion in favour of the take-over, but expressed reserves relating to the protection of fair competition between DTT channels in relation, more specifically, to advertising, and purchasing, of sport events rights. The CSA recommended a “mise sous surveillance” (monitoring) procedure, so that obligations may be closely monitored. Following authorization of the transaction by the Autorité de la concurrence, it is now up to the Conseil to issue an opinion regarding compliance of the capital shift with the provisions of the law of 30 September 1986 relating to communication freedom, and, in particular, as regards compliance with audiovisual and cinema production support requirements, a necessary condition to the conclusion of new agreements (conventions).
The Conseil also pays close attention to developments in pay TV. Generally growing, with differences depending on the distribution modes, the pay-TV market is one where stakes may be extremely diverse: theme channels financing, pay DTT, distribution and carrying exclusivities –an issue thoroughly analyzed by Marie-Dominique Hagelsteen in a report commissioned by the Prime Minister in October 2009-, are a few of them. In March 2009, the Conseil issued the Autorité de la concurrence (competition authority) with its opinion regarding exclusive rights.
While these developments occurred in private broadcasting, the law of 5 March 2009, setting forth the conditions for the overhaul of public broadcasting, was also adopted. Success hinges on necessary guarantees relating to groupe France Télévisions’ financing. In preparation for the 2010 budget, the amount of the subsidy to offset the ban on advertising after 8 p.m. has been updated under the loi de finances (appropriation act). In addition, new specifications (cahier des charges) were adopted in relation to France Télévisions. In addition, the group was reorganized, so that public broadcasting may fulfil its role even better than it has in the past, as such role is essential for our country.
The Conseil wishes to help public and private broadcasting companies to rise up to the new economic and competition challenges. Therefore, its regulates, taking all aspect of this new context into account, including DTT and the Internet, so that the proper conditions for the development of, public, private, free-to-air, and pay channels, as well as that of companies involved in distribution, creativity, production, and technique, be created. Channels’ financial success must continue to benefit creativity. To achieve this, the Conseil uses an adaptive approach to economic regulation, increasingly based on contractual relationships.
On 3 February 2009, the Conseil celebrated its 20th anniversary. The Conseil has become a genuine player in the on-going digital revolution. It has adapted regulation to the new broadcasting environment while always working in the public’s interest, and to serve the general interest, in cooperation with the industry. In 2009, its actions were based on a consistent vision of the digital economy, encompassing all media. Their aim was to support the technological, and competition, revolution, for the benefit of all. In this vision, the wealth produced by broadcasting is both financial, and cultural, and benefits all of society.
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