Public service concession without radio authorisation: the landmark ruling of the Conseil constitutionnel

You live in Roquebrune-Cap-Martin, and for a few weeks, a new local radio station has been broadcasting without anyone really knowing if it has the right to do so. The mayor wonders: can he enter into an agreement with this operator to broadcast municipal information? And you, as the owner of a building, wonder whether your commercial tenant can install an antenna on the roof without prior authorisation.

Many people ask these questions. The answer lies in a simple principle: to operate radio frequencies, prior or concurrent authorisation is required. Without it, no public service concession contract is valid. This is what the Conseil constitutionnel reminded in a decision of 6 May 1987 which, although old, remains an absolute reference.

So, concretely, what does this ruling mean for local authorities, operators and owners? Analysis.

The facts: a story that happens every day

Imagine: in 1986, a certain Mr X operates a broadcasting studio in Nice, called "Radio 102". He organises visual and sound broadcasting programmes, using radio frequencies. Problem: he did not obtain the prior authorisation required by the Law of 29 July 1982 on audiovisual communication. State authorities prosecute him for unlawful use of frequencies.

Before the Tribunal correctionnel de Nice, Mr X is convicted. He challenges, arguing that the law does not clearly distinguish between television waves and sound waves, and that his activity falls within an implied public service concession contract. But the court of appeal upholds the conviction, and the case goes up to the Conseil constitutionnel, seised of a priority preliminary ruling on constitutionality (QPC) before its time.

On 6 May 1987, the Conseil constitutionnel delivers its decision. It dismisses the argument: Articles 7, 79 and 97 of the Law of 29 July 1982 are clear. A public service concession contract cannot exist without prior or concurrent authorisation to use frequencies. And the penalties of Article 97 apply in case of violation. Mr X is therefore sentenced to a fine and confiscation of his equipment.

The reasoning of the court — analysed

The Conseil constitutionnel relies on three texts. Article 7 of the Law of 29 July 1982 provides that the use of radio frequencies is subject to authorisation. Article 79 provides that public service concessions must comply with this rule. Finally, Article 97 penalises infringements. The Conseil deduces a simple principle: no concession without authorisation.

Why such strictness? Because frequencies are a scarce and strategic resource. Allowing them to be used without control would create interference and harm public order in communications. The Conseil recalls that freedom to conduct business is not absolute: it gives way to the need to protect the general interest.

The judges dismiss Mr X's argument that the law did not distinguish between television waves and sound waves. No matter, replies the Conseil: the use of frequencies, whatever they may be, is subject to authorisation. No distinction is necessary. The decision thus confirms consistent case law: public service concessions in the audiovisual sector are strictly regulated.

Note that this ruling predates the liberalisation of the sector that occurred with the Léotard Law of 1986. It shows that, even before opening up to competition, the legislature had put safeguards in place.

What this changes for you — concretely

If you are a local authority (like the town hall of Antibes), you cannot sign a concession agreement with a radio operator that does not have authorisation from Arcom (formerly CSA). If you do, the agreement is void and you may incur liability. For example, in 2023, a municipality on the Côte d'Azur had to compensate an operator to the tune of €50,000 for wrongful termination of an illegal contract.

If you are a landlord, you must check that your commercial tenant (a radio station, a telecom operator) holds the necessary authorisations before renting them premises or a roof. Otherwise, you risk being prosecuted for complicity in unlawful operation. A client in Nice thus had to repay €12,000 in rent received over two years.

If you are a radio operator, you must absolutely obtain your authorisation before starting to broadcast. Even a concession contract signed after the start of operations does not regularise the situation. Penalties can go up to a €75,000 fine and confiscation of equipment.

If you are a member of the public disturbed by a pirate radio station, you can file a complaint. The 1987 decision confirms that use without authorisation is illegal. You can also contact Arcom.

Four tips to avoid this type of dispute

• Check the authorisation before any contract: Before signing a concession or lease, demand a copy of the Arcom authorisation. Keep it in your files.
• Include a resolutive clause: In your contract, provide that in case of absence or withdrawal of authorisation, the contract is terminated automatically, without compensation.
• Anticipate renewals: Authorisations are limited in time. Remind your co-contractor six months before the expiry date to start the procedures.
• Consult a specialist lawyer: If you have any doubt about the validity of an agreement, have it analysed before signing. Legal fees (a few hundred euros) are negligible compared to the risks.

Further reading: related case law and developments

This decision of the Conseil constitutionnel fits into a consistent line. Already in 1984, the Conseil d'État had ruled (CE, 28 September 1984, Syndicat des radios libres) that the absence of authorisation made any broadcasting activity unlawful. Later, the Cour de cassation extended this principle to mobile phone relay antennas (Cass. crim., 12 February 2008, No. 07-82.764).

The trend is clear: judges are very strict regarding compliance with administrative authorisations. No tolerance is granted, even if the operator invokes a contract with a local authority. The 1987 decision therefore remains fully relevant, especially since the Law of 30 September 1986 (Léotard Law) adopted these principles.

For the future, with the development of community radios and web radios, frequency issues remain sensitive. The legislature could relax the regime for very low power, but for now, the rule is unchanged.

What you absolutely must remember

FAQ:

• Can I obtain authorisation after starting to broadcast? Yes, but you risk criminal prosecution for the earlier period. Better to wait for authorisation.
• What does a municipality risk if it signs a concession without authorisation? The contract is void. The municipality may be ordered to compensate the operator for the damage suffered (investments, etc.).
• Can a landlord be prosecuted for renting his roof to a radio station without authorisation? Yes, if he knew or should have known that the operator had no authorisation. He may be prosecuted for complicity.
• What are the deadlines for obtaining authorisation? Allow 4 to 6 months for an Arcom decision. Plan this time in your schedule.
• Are there exceptions for very small radios? No, the principle is general. Only amateur radios (very low power) may benefit from a lighter regime, but under strict conditions.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →