French tv licensing (transmission via cable and satellite)

INTRODUCTION

Delcade Law Firm has acquired a solid experience in French TV licensing and French TV media law.

Numerous members of the Firm possess a broad knowledge of French media law, including regulatory (French TV licensing), corporate (setting up of media companies in France), commercial agreements in French media sector (rights acquisition, contracts, insurance, copyright, and production work), French tax and French employment law in the media sector.

Led by Benoit Lafourcade, our team can offer advise on all regulatory aspects of film making and TV production.

This article gives an overview of the process required for setting up a TV production company in France.

The sector is governed by the “Conseil Supérieur de l’Audiovisuelle” (CSA).

In principle, audiovisual communication is free. However, the television sector is closely regulated, according to a law introduced on September 30th 1986.

Article 33-1 of this law regarding freedom of communication provides for the principle of licensing for services that are broadcast or distributed by networks that do not use the frequencies allocated by the CSA.

ADMINISTRATIVE CONTROL

TV production companies shall respect a certain number of obligations before and after having been approved.

Firstly, allocation of terrestrial frequencies are submitted to a control by the CSA. However, this authority also controls all television productions bound to the public, whether by cable or satellite.

Without using the term “authorization”, article 33-1 of the law of September 30th, 1986 sets out the principle that private TV companies cannot emit until the CSA has approved his appointment. Following an application procedure (1), both parties enter into an agreement regarding the use of TV broadcasting (2).

1. A.         Application

The application requirements vary according to the nature of the network support, whether it be cable or satellite. If a Private company wishes to emit on SAT-cable network, it will be subject to the following obligations:

• Disclosing all information regarding the nature of the programming and the time (schedules, themes, duration of broadcast, etc.);

• Defining all the public access conditions and the modality of broadcasting (contractual relations with the operators, etc.);

• Defining how the Company will operate;

• Providing the status of the company and the model of governance;

• Providing information on funding and allocation of capital. In principle, TV production companies are subject to a specific regulation ensuring that no more than 20% of the capital is detained by foreign companies. (This obligation is not required for SAT-cable TV production companies);

• Defining a forward financial plan for a period of 5 years, including resources (number of subscribers, advertising revenue, etc.) and expenditure (distribution, personnel costs, etc.) of the company.

Please note that a company which has an annual budget below 150.000 euros is not subject to an authorization, but must however file a declaration.

1. B.         Signature of an Agreement with the CSA

• Content of the Agreement

It varies according to the audiovisual communication mode or the nature of the proposed programs (radio or television) as well as dissemination techniques.

Thus, the TV production company agrees to comply with the obligations laid down by the CSA for the duration of the convention.

• Obligation of Transparency

In addition to the ordinary laws of corporations and the information provided to the CSA in the records of application, TV production companies are submitted to obligations regarding the sharing of information with the general public.

This measure serves to identify those who, by their participation in the capital in particular, are likely to exercise an influence on these companies and their activities.

For more efficiency, some of these obligations apply also to parent companies which are in a position to control the editors of television programs (obligation to provide information to the CSA regarding the parent company).

• Obligations Related to Audiovisual and Film Industry

The EU’s “Television Without Frontiers” Directive (89/552/CEE dated October 3rd, 1989) requires that 51 % of television programming should be of European origin. This Directive was incorporated into French law on January 21st, 1992, modifying Decree 90-66 of January 17th, 1990 (“The Decree”).

This Decree was also modified by the Decree of December 2nd, 2001, and the Decree of December 23rd, 2004. They provide definitions and legal regime related to audio-visual and film industry.

• Obligation for the Broadcast of Films (Point 1)

The “Centre National de la Cinématographie” (CNC) participates in the study and preparation of regulations and make sure the rules are respected by the multimedia industry actors.

The CNC ensures the observance of certain rules relating to the broadcasting of cinematographic works in France, according to article 7-1 of Decree No. 90-66 of January 17th, 1990, as amended.

These rules apply to feature films (longer than one hour). The Decree also provides a distinction between different categories of television services (film services, pay-per-view services, services other than films, multiple programming services).

Film services are defined as television services primarily  films or programs devoted to the cinema and its history and as such they are subject to a specific subscription.

If a TV  production company broadcasts this kind of programs, it will be subject to various obligations, such as:

• Quotas for broadcast of European films and original French language films;
• Programming schedule for films;
• Film production obligations.

• Control of Audiovisual Works (Point 2)

The CSA controls the dissemination of audiovisual works, and imposes quotas for broadcasting of European works.

Article 4 of the Decree defines “audio-visual works” negatively stating that they are programs not falling within the following categories :

• Long-duration theatrical works;
• News and information programs;
• Variety shows;
• Game shows;
• Non-fiction programs completed on sets;
• Sporting broadcasts;
• Advertisements;
• Tele-shopping;
• Self-promotion.

• Control Regarding Ethical Obligation and Observance of Information Pluralism

The CSA controls the content of information, such as:

• That information is issued by professional journalists;
• That information is not oriented politically;
• Respects the freedom of expression;
• Respects differences of opinion and minority views
• Etc.

If these obligations are not complied with, the CSA may impose sentences, up to the termination of the agreement.

• Terms of Agreement

The initial convention is for a duration of 10 years. Upon compliance with the above conditions, the agreement is renewable two times for a period of 5 years.  A new agreement will ultimately be re-negotiated.