French administrative court overrules CSA's decision to withdraw Numéro 23 licence
On 30 March 2016, the French "Conseil d'Etat" (the highest administrative jurisdiction in France) decided to invalidate the sanction imposed by the French CSA (Conseil supérieur de l’audiovisuel) against the channel Numéro 23.
Thie sanction which had been decided in October 2015 and which was due to take effect on 30 June 2016, was made on the grounds that the company operating the channel (Diversité TV) had been planning a "quick sale" of the latter, thus “contradicting the objectives stated in its licence application".
The French audiovisual regulator had found that the owner of the channel Numéro 23, Mr. Pascal Houzelot, had made fraudulent speculation on a public frequency which the State had allocated him for free, by planning to sell the TV channel for 90 million euros. The sanction was harsh, namely the withdrawal of the licence starting from 30 June 2016. But in its 30 March 2016 decision, the "Conseil d'Etat" overturned the CSA's decision finding that the fraud alleged by the regulator was not satisfactorily established. According tothe administrative judges, in case a companydoes not comply withcertain obligations resulting fromits licence, theCSA should implement, after having previously addressed to it a formal notice,thesanctioning powerit holds fromArticle42-1 of the Actof 30 September 1986 in order toget it respected. In the concrete case,afraud in law justifying thewithdrawal of the authorizationwas not sufficiently demonstrated during the legal proceedings.
Mr. Pascal Houzelot did not hide his satisfaction of the decision. The channel which retains about 0.7% of audience considers the sanction imposed by the French audiovisual regulator "illegal".
In its press release of 30 March 2016, the French CSA recalled that it had based its decision on public interest considerations which are the very core of broadcasting regulation, namely to ensure efficient management of terrestrial frequencies in the public domain and to ensure that these are awarded to operators who use them in accordance with their commitments and in a correct and honest manner.
The CSA acknowledges that given the criteria that have been applied in the decision and the current state of the law, the regulator is unable to fulfill its mission which is, inter alia, to punish behaviour contrary to these objectives.
Against this background, it is worth mentioning that a draft lawaiming to strengthenfreedom, independence andpluralism of the mediais currently under discussionbefore the French Senate(the lower chamber of the Parliament).It aimsin particulartodefineamongstthe tasks entrusted to the CSAthose designed toensure pluralism,honesty andindependence of informationand programmes(Article 2)andto specify that theagreements concluded betweenthe regulator andradioor television service providersbroadcastterrestrially(Article 3)andservices broadcast bycable,satelliteandADSL operators (Article 4)include measuresensuring compliance withthe principles of pluralism,honesty andindependence of the media.