ARCEP makes public its position on the future of television and electronic communications regulation in the internet era

Paris, 11 October 2012

On 21 August 2012, the Prime Minister had asked the ministers responsible for electronic communications and broadcasting to conduct an investigation into the future of regulation in these two sectors in the internet era, drawing heavily on the positions expressed by national regulators, ARCEP and CSA. In late August, ARCEP's Executive Board announced that it would play an active role in this investigation.

After having heard from a great many stakeholders from the different electronic communications, TV broadcasting and internet sectors, on Tuesday, 2 October the ARCEP Board reached a unanimous position for this stage in the investigation, and submitted it to the Government. With the Prime Minister's agreement, ARCEP is making this position public today.

In keeping with the Prime Minister's suggested approach to this investigation, ARCEP believed that the first area of exploration should be the changes at work in the television and electronic communications sectors, to then be able to deduce the changes that need to be made to the goals set for regulation in the affected sectors, and ultimately to define the necessary institutional reforms that will make it possible to achieve these goals in an efficient manner.

The main question is clearly that of necessary changes to the regulation governing the television industry, as it was designed in 1986 and based on a triple "TV exception" embodied by terrestrial networks devoted specifically to TV broadcasting, by the notion of TV programming and by the specialisation of the viewing devices (i.e. televisions).

The digitisation of all media content, which makes it possible to relay that content over any electronic communications network, less and less over terrestrial broadcasting networks and more and more over the internet, the increase in time-shifted/on-demand viewing and the growing array of viewing devices (computers, tablets, smartphones, TVs both connected and not…) are all calling the applicability of existing regulation into question. Among other things, this shift alters revenue sharing in a way that benefits newcomers to the market, content and application providers and device manufacturers, operating at the networks' two extremities.

As a result, the Government and Parliament need to define the contours of new television market regulation. The three most conceivable directions are:

In the first instance, the responsibilities and tasks assigned to the broadcasting and electronic communications regulatory authorities would continue to be very different, and there would be no real justification for the two to merge. It may nevertheless be wise for the Law to create a body that is common to the two regulators. This body would be composed of all or a portion of the two authorities' executive boards; its purpose would be to address issues that are common to both regulators and it would have decision-making powers.

In the second instance, one solution could be to narrow the two regulatory authorities' area of specialisation: ARCEP would be responsible for the two sectors' technical-economic regulation and CSA for regulating television content - as recommended in 2008 by the Committee for freeing up growth in France (commission sur la libération de la croissance), headed by Jacques Attali.

In the third and final instance, the responsibilities and tasks assigned to the broadcasting and electronic communications regulatory authorities would become relatively similar, and it would make sense for them to merge. It would be advisable for the newly-formed regulatory authority to have the power to regulate competition law, within its purview, and to be given all or a portion of the radio spectrum management responsibilities that are currently assigned to the national frequency agency, ANFr. This would thus make it more akin to the Ofcom model in the UK.

In all three instances, the component of broadcasting regulation that derives from the notion of cultural exception will depend in particular on the conclusions of the investigative mission assigned to Pierre Lescure, and the subsequent conclusions drawn by the Government and Parliament.

Whatever direction the Government and Parliament choose to take, it must seek to promote freedom of communication on the networks - in keeping with the spirit of the Law of 1986 and the Law of 1989 that created broadcasting authority, CSA - as well as compliance with the principle of net neutrality which is one of its central tenets, in addition to being at the heart of ARCEP's actions.

These are the conclusions that ARCEP's Executive Board has reached thus far, and submitted to the Government.