The European Commission said on September 29, 2011 that French plans to grant “bonus channels” to the incumbent commercial television broadcasters TF1, M6 and Canal+ violate European law. The Commission found that the European directives on electronic communications apply to the French bonus channel arrangements. Based on these directives, the Commission argues that the bonus channels violate rules requiring objective, transparent, non discriminatory and proportionate procedures for license grants.
According to the Commission, granting bonus channels to the incumbent broadcasters is discriminatory, because other candidates for DTT frequencies had to compete based on an open beauty contest organized by the French broadcasting authority, the CSA. The incumbent commercial broadcasters receive the bonus channel automatically, without having to go through any competitive tendering procedure.
The Commission also believes that granting the bonus channels is disproportionate, because it results in a windfall for the relevant broadcasters. The bonus channels were put into place by French lawmakers in order to compensate for damage that the commercial broadcasters would allegedly suffer after the terms of their analog broadcasting licenses were shortened. According to the European Commission, this alleged damage is not substantiated, and any damage that exists may well have been compensated by other advantages granted to these broadcasters. The Commission noted that the three commercial broadcasters do not qualify for a special treatment as public service broadcasters. Therefore, the normal rules for competitive and non-discriminatory tendering must apply.
If France does not modify its rules, European Commission may decide to refer the case to the European Court of Justice. France may also decide to modify or eliminate the rules regarding the bonus channels, which have not yet been granted. This is the solution that was recommended by CSA Chairman Michel Boyon in his recent report on French digital terrestrial television. However, because the bonus channels are provided for in a 2007 law, French parliament may have to intervene to amend the law.