France

[FR] Government Considers Possible Convergence of CSA and ARCEP

IRIS 2013-1:1/21

Amélie Blocman

Légipresse

On 21 August 2012 the Prime Minister announced he was considering the convergence of the audiovisual regulatory authority (Conseil Supérieur de l’Audiovisuel - CSA) and the electronic communications and postal authority (Autorité de Régulation des Communications Electroniques and des Postes - ARCEP). He has instructed a number of Ministers to send him proposals by the end of November on the changes in legislation and regulations that would be necessary. There is indeed no doubt that as audiovisual content is being increasingly shown on fixed and mobile Internet devices it is necessary to consider the effectiveness of the methods of regulating electronic communications and the audiovisual scene. At the moment, the terrestrial broadcasting of audiovisual programmes is covered by regulation on content, one of the purposes of which is to ensure quality and diversity, whereas content circulated via the Internet is covered by regulations that are more limited and sometimes inappropriate.

The two authorities each submitted their position on the issue to the Prime Minister in October. For ARCEP, the main issue is the need to adapt regulation of the audiovisual scene, as instituted by the Act of 30 September 1986. It believes there are three main possible hypotheses. The first consists of retaining strong regulation of audiovisual content, in the spirit of cultural exception, but based on new foundations taking into account the upheavals caused by the Internet. In this case, the missions and tasks of the audiovisual regulator and those of the electronic communications regulator would remain very disparate and there would be no real justification for convergence of the two authorities. On the other hand, the Authority found that it might be worth adopting legislation to create a single body for the two regulators, comprising all or some of the members of each, in order to deal with areas of common interest and to have decision-making powers. In the second scenario, ARCEP would be responsible for regulating the technical and economic aspects of the two sectors and the CSA would be responsible for regulating audiovisual content. The third scenario involved favouring mainly economic regulation of the stakeholders in the audiovisual sector. Merging the authorities would then make sense, but it would be preferable for the authority created in this way to have the right to claim competitive rights and incorporate all or part of the missions for managing the broadcasting spectrum currently in the hands of the national frequency agency (Agence Nationale des Fréquences). This would bring it close to the United Kingdom’s OFCOM. In all three hypotheses, ARCEP notes that the element of audiovisual regulation involving cultural exception would depend more particularly on the conclusions of the mission entrusted to Pierre Lescure.

For its part, the CSA has presented two scenarios of possible evolution. The first consists of gradual convergence with ARCEP, in two separate stages. This would involve firstly keeping the two present authorities separate but creating a joint regulatory body with decision-making powers, whose members would come from both authorities. Indeed one possibility would be for all the members of both authorities to be members of the new joint body. This new body would deliberate on matters of common interest, such as management of the spectrum, economic regulation, and the regulation of on-line services, which could be defined by legislation. The second stage would involve setting up a single authority in two parts, one for content and diversity, and one for infrastructures and networks, to be chaired by a single person. The CSA believes convergence of this kind would have many advantages - it would facilitate the optimisation of the operational management of frequencies, it would improve the broadcasting of content on fixed and mobile data networks, it would provide an answer to the question of identifying which authority was competent to deal with disputes involving difficulties in accessing on-demand audiovisual media services (on-demand AMSs), and it would ensure that the financing of audiovisual and cinematographic production was taken into account when implementing the principle of the networks’ neutrality. The second, more radical, scenario proposed by the CSA in its report would consist of creating a single institution forming a single unit. The CSA nevertheless observed that there was considerable opposition to this option, which might appear premature. The main points raised involved the risk of economic and competition issues taking precedence over aspects relating to culture and society.

In the light of these conclusions, the Government should make an announcement soon on the future of the plans for convergence.