The Conseil d'État has ruled that Arcom did not act illegally in its analysis, which led it to exclude the C8 and NRJ12 channels, both in its assessment of the individual applications and its comparison of their merits. However, since the Canal+ group withdrew its bid for four pay-TV channels six days before Arcom's decision, the Conseil d'État ruled that the regulator must promptly initiate a new impact study and public consultation process to determine whether a new call for applications should be issued to allocate the four available frequencies.
The French law of 1986 on freedom of communication stipulates that DTT frequencies - which are a public resource limited in number - are allocated after an impact study and public consultation, followed by a call for applications. The law stipulates that when a DTT frequency is allocated as a result of this procedure, it cannot be renewed beyond a period of 20 years without a new call for applications, to ensure competition and pluralism.
Following an impact study and public consultation, Arcom issued a call for applications on 28 February 2024. On 24 July, as a preparatory measure, it shortlisted 15 of the 25 applications, including ten free-to-air channels and five pay-TV channels, with which it began negotiating agreements, without including C8 and NRJ 12. On 5 December, the Canal+ group announced that it was withdrawing the applications of its four pay-TV channels, which were among the shortlisted channels. Arcom's decisions of 11 December 2024 finally accepted 11 applications, including two new channels, CMI TV (since renamed T 18) and OFTV, and rejected the bids of C8 and NRJ 12.
C8 and NRJ 12 appealed to the Conseil d'État to overturn Arcom's rejection of their applications.
Arcom did not act illegally by excluding C8 and NRJ12 in favour of other candidates, based on its evaluation of each application and a comparison of their respective merits.
The Conseil d'État considered that Arcom did not act illegally in the assessment it made of the various projects selected compared to those it rejected, and in the application of the criteria set out in articles 29 and 30-1 of the law of 30 September 1986. As required by law, it handed down its opinion on all the applications submitted to it, with the aim of ensuring diverse programming and content on DTT.
As for C8, which holds a significant audience share on DTT, excluding the traditional terrestrial television channels, Arcom noted that it offers a high volume of live, exclusive content, but that these programmes are not as diverse as those of its competitors, which have more varied and frequently refreshed offerings. The Conseil d'État considered that the regulator was legally justified in taking into account the channel's repeated infringements in recent years of its legal and contractual obligations, particularly in relation to human rights, the protection of minors and broadcasting control. These infringements cast doubt on its ability to meet its commitments. Finally, since the channel has never achieved financial stability since its inception 20 years ago, the growth plan set out in its application contrasted with its results and the outlook for the advertising market.
As for NRJ 12, Arcom noted that its plan was to devote most of its airtime to broadcasting audiovisual dramas, many of them repeats, plus entertainment, genres that are already well represented on DTT, as well as teleshopping, to which the channel already devotes more than 1,000 hours a year. In addition, the channel’s commitment to air new programmes was substantially lower than that of other candidates. Finally, the projected growth in advertising revenue for NRJ12, which has posted a positive net result for only one financial year since its inception, stands in contrast to the decline in its audience share, including among its targeted young demographic, and its advertising market forecast.
The Conseil d'État also ruled that Arcom had not acted illegally in assessing the merits of the applications submitted by CMI TV, OFTV, TFX, TMC and W9, taking into account the specific features of each of these projects, and in comparing all applications.
Arcom must immediately resume a public consultation and impact study procedure to decide whether the four frequencies that became available a few days before its decision should be subject to a new call for applications.
The Conseil d'État has ruled that Arcom must immediately resume a public consultation and impact study procedure to decide whether all or some of the frequencies released by the withdrawal of the Canal+ group's four pay-TV channels should trigger a new call for applications.
It ruled that Arcom was temporarily able to issue only 11 licences, given the deadlines within which it was required to make its decision before the current licences expired, thus leaving the number of free-to-air channels unchanged. In fact, the withdrawal of four pay-TV channels six days before its decision meant that Arcom was unable to assess the economic consequences that the authorisation of additional free-to-air channels might have for the sector's equilibrium at such short notice.
Read the decision (in French)