Andreas von Bonin, LL.M.
'98
©
Copyright Andreas v. Bonin
The "Sondersituation"
of Broadcasting
in German and
American Law
Exam Paper for
Telecommunications Law
Fall Term 1997/98
Table of Contents
jump directly to beginning of text
I. Introduction 1
II. How Broadcasting is Treated
Differently 2
A. Art. 5 Grundgesetz and the
Development of the "Dual System" in
1. History 3
2. Broadcasting and Cable: No
Difference 5
3. Art. 5 I cl. 2 Grundgesetz as a
"Serving
4. The Consequence: The Constitution
Requires Regulation 8
a. The Need for Statutory
Regulation 8
b. Organization 8
c. Pluralism 10
aa. Internal Pluralism 10
bb. External Pluralism 10
cc. Reality 11
d. State Supervision 11
e. Antitrust 12
f. Conclusion 13
5. The "Freedom from State"
Rationale 13
6. The "Basic Supply"
Rationale 14
7. Particular Limitations on the
Editorial Freedom of Broadcasters 15
a. License 15
b. "Program
Standards" 15
c. Advertisement 16
d. Right of Reply 17
e. Protection of the Youth
17
f. Airtime For Churches and
Political Parties 17
B. The First Amendment and
Broadcasting 18
1. History 18
2. The licensee as a public trustee 20
a. Influence on Editorial
Freedom 20
aa. Diversity and Quality
20
bb. Fairness Doctrine 22
b. Influence on
Entrepreneurial Freedom 23
aa. The Person of the Owner
23
bb. The Efficiency of
Spectrum Use 23
3. Content-based regulation without
strict scrutiny: Red Lion and
4. Broadcasting and Cable: Different
Worlds ? 26
C. Comparison 26
III. Why Broadcasting is Treated
Differently 27
A. Scarcity 27
B. High Entry Barriers 29
C. Accessibility for children 30
D. Intrusiveness / Pervasiveness 31
E. Allocation of Communication Power
32
IV. Current Broadcasting Regulation in
the Light of Technological Changes 33
A. Digitization and Abundance 33
B. Digitization and Convergence 35
C. Interactivity and Intrusiveness 36
D. Convergence, Globalization and
Communication Power 38
V. Conclusion 39
The "Sondersituation"(1)
of Broadcasting
in German and American Law
Broadcast media, more than
any other media organ, are subject to the highest level of content regulation.
This observation is true for the German as well as for the American
Telecommunications Law. This inquiry will give an overview of the existing
broadcast regulations in both countries.(2)
It will focus on regulation
that is likely to influence the editorial freedom of broadcasters. The
"special situation" of broadcasting will be analyzed separately in
the light of the different constitutional guarantees. Particular attention will
be given to the definition, description and analysis of the underlying motives
that are employed to justify limitations of editorial freedom in the
broadcasting realm (III).
Due to the rapidly ongoing
changes in technology, media perception and in the economics of
telecommunications, these rationales become questionable, as does the future of
the "Sondersituation" of broadcasting. Therefore, this paper
sill discuss how these factual changes might affect the justification of
retaining these regulations (IV).
II.
How Broadcasting is Treated Differently
A. Art. 5
Grundgesetz and the Development of the "Dual System" in
The basic rights concerning
communication are protected by Art. 5 of the German Constitution (GG). It
reads:
1: cl.1: Everyone has the right to freely
express and to disseminate his opinion by speech, writing and pictures and
freely to inform himself from generally accessible sources. cl. 2:
Freedom of the press and freedom of reporting by means of broadcasting and film
are guaranteed. cl. 3: There will be no censorship.
2: These rights are limited by the
provisions of general statutes, in statutory provisions for the protection of
the youth and in the right to personal honor.
3: Art and science, research and
teaching are free. Freedom of teaching does not absolve from allegiance to the
constitution.(3)
From the early days of
German post-second world war constitutional jurisprudence, Art. 5 GG was found
to contain "more than only the individual right of the citizen against the
state of a respected sphere in which he can express opinions unlimitedly."(4)
As the several rights
guaranteed by this provision enable "a constant intellectual discourse,
the battle of opinions", it is essential for the process of the formation
of a public opinion in a democracy.(5)
It is "simply constituent"(6) for the order in a liberal,
democratic community of which a core element is the debate.While nevertheless
the Freedom of Expression (Art. 5 1 cl. 1, 1st alternative GG), the Freedom of
the Press (Art. 5 1 cl. 2, 1st alternative GG) and of Film (Art. 5 1 cl. 2, 3rd
alternative GG), and the Freedom of Information (Art. 5 1 cl. 1, 2nd
alternative GG) mainly function as basic individual rights in the traditional
way of barring state action, the Freedom of Broadcasting is understood
significantly different. The
a. Broadcasting in
b. In 1926, the DRP started
issuing licenses for companies that wanted to broadcast through DRP's
equipment. The conditions for qualifying for a license included stringent
content and structural regulation.(8) The programmers had to transfer 51% of their
stock to a parent company, the "Reichsrundfunkgesellschaft"
(RRG), of which the DRP held 51%. Broadcasting was financed by a broadcasting
fee that every listener had to pay and of which the DRP kept 60% while
spreading the rest to the programmers. Revenues from advertising only played a
marginal role.
c. Even before 1933, the
state had completely taken control of the RRG(9) and installed broadcasting
commissioners in every programming company as well as on the level of the Reich.
When Hitler abolished the Laender in 1934, broadcasting was finally centralized
and used as a mere propaganda tool for the state and the national-socialist
party.
d. After 1945, German
politicians attempted to re-establish government control of broadcasting, but
the allied forces - led by the
e. The final introduction
of private broadcasting in
2.
Broadcasting and Cable: No Difference
In 1982, the Deutsche
Bundespost (DBP) started construction on a broadband cable network in
3. Art. 5
I cl. 2 Grundgesetz as a "Serving
The
"Sondersituation" of broadcasting in
The classic-liberal
tradition views basic rights as only creating a sphere of liberty for the
individual in which she can perform the protected conduct free from state
intervention. Any social relevance of the protected conduct is purely factual,
but not normative, i.e. the conduct in question is not protected only in order
to further special societal goals. German constitutional doctrine emphasizes
that beyond this function, the basic rights of the constitution in their
entirety form an "objective order of values"(19), a design for society and a set of
values, government has to guarantee and protect permanently. This is the
general way in which the basic rights of the German constitution are understood
and applied.
The objective function of
basic rights can have a different effect on the individual right aspect of a
guarantee: A basic right protects certain conduct only insofar as it is
directed at the objective value the guarantee is designed to secure. For
example, if free speech is only related to the political process, the
individual only enjoys protection of the guarantee insofar as he is a
participant in the process of free (political) communication. There can be no
conflict between the objective direction and the subjective protection of the
basic right. Broadcasting serves "both as a medium and factor in the
constitutionally protected process of free opinion formation."(20)
According to the
Bundesverfassungsgericht, the importance of broadcasting for this core function
of a democratic state does not allow a mere classical-liberal approach to be
applied to the protection of this conduct. In contrast, the individual liberty
is so closely linked to the purpose for which it was guaranteed that it can
only be exercised in pursuance of this purpose. Therefore, the freedom of
broadcasting in the jurisdiction of the Bundesverfassungsgericht is a
"serving liberty".(21) It is not meant for the deliberate use
of its bearer. "As a serving liberty (the freedom of broadcasting) is not
primarily guaranteed to the benefit of broadcasters but to the benefit of free
and comprehensive opinion formation, privately and publicly."(22) The freedom of
broadcasting can only fulfill this function of serving the process of free
opinion formation, if two elements are present: First, broadcasting has to be
free of government influence. Here, the classic defense function of basic
rights comes into play(23). But this rights defense is not sufficient to
guarantee broadcasting freedom. Mere freedom from governmental influence does
not on its own mean that that the broadcasting industry can freely engage in
the comprehensive shaping of opinion making. Defensive regulation alone cannot
accomplish this task. Rather, the accomplishment of this task requires that a
system be created to ensure that the diversity of existing opinions finds its
greatest possible breadth and completeness through broadcasting, and that, as a
consequence, comprehensive information will be offered to the public. In order
to activate this goal the legislature must enact substantive, organizational,
and procedural provisions designed to faciliate the function of broadcasting
liberty and to secure what Art. 5 1 GG guarantees.(24)
Interpreted in this way,
the freedom of broadcasting requires a body of statutes that encourage and
maintain variety. There is a need for statutes that flesh out the contours of
this right that directly emerges from the guarantee itself (' the contouring
power", see infra 4. f.).(25)
4. The
Consequence: The Constitution Requires Regulation
The Bundesverfassungsgericht
has elaborated through several decisions a set of parameters in which the
required regulation must be orientated in order not to violate the guarantee of
The Broadcasting Clause.(26)
a. The Need for Statutory
Regulation
The fundamental principles
of the rule of law and democracy require that all "important"
decisions are made by the legislature. As the positive order required by the
freedom of broadcasting has direct influence on the degree of constitutional protection,
it is "important" in that sense. Administrative regulations or
decisions cannot shape the content of the constitution.
b. Organization
Regulation has to ensure
that broadcasters are organized in a way that is likely to encourage and
maintain a free formation of opinions. Under current law (of the Laender(27)), the highest governing body of the
public-law regional broadcasters is the Broadcasting Council (BC). It is
in charge of the broadcasters' budget, has the power of ex-post control
of the programming and elects the chairman (Intendant) of the
organization. It's members are nominated by several "societally
relevant" groups ("benches"). The "state bench"
consists of members elected by the state parliament. Members of the "bench
of associations", "bench of citizens" and "culture
bench" are drawn from non-governmental organizations, cultural groups,
interest groups of senior citizens, handicapped, and aliens. The state
legislature decides which organization is eligible to nominate members to the
BC. It enjoys broad discretion in this regard.(28) All members of the BC are supposed
not to represent their respective interest group, but to act as an
"attorney of the common interest"(29).
For private broadcasters,
these standards are lower. They may establish a Programming Council (PC)(30) representing the same relevant
groups of society. The PC has almost no executive powers but can make suggestions
and complaints.(31)
If the private broadcasting company fails to provide sufficient diversity in
its programming, it can be required to establish a PC (see infra d.).
c. Pluralism
In order to be a factor of
the formation of opinions, broadcasting has to present the diversity of
existing opinions in its greatest possible breadth and completeness. According
to the jurisprudence of the Bundesverfassungsgericht, the constitution requires
no particular system of plurality safeguards, but leaves it to the discretion
of the legislature. In general, statutes have to guarantee that the means of
broadcasting are not surrendered to one single group in society.
"Therefore, broadcasting companies must be organized to allow all interests
worthy of consideration to exert influence on their governing boards and to
express themselves in the overall programming."(32) Two systems have been found to be
constitutionally acceptable:
aa. Internal Pluralism
The concept describes an
organization of broadcasting companies in which the influence of the relevant
societal forces is carried out internally through their representation within
the governing bodies of the companies. If the legislature chooses this option, it
has to provide objective determinations and evaluations as to which groups are
to be represented and how their influence in the respective body can be
efficiently safeguarded. It will have to do so on the basis of the existing
social forces.(33)
bb. External Pluralism
Instead of the internal
pluralism or in combination with it(34), broadcasting can be organized in a
way that guarantees that the overall supply of domestic programming represents
the entire spectrum of existing opinions in society. But the
Bundesverfassungsgericht has made it clear that mere reliance on regulative
market forces cannot satisfy the plurality requirement.(35)
cc. Reality
The Media Statutes of the
several Laender have unanimously chosen a system of internal pluralism for
their public-law broadcasters. Private broadcasting companies are subject to
lower standards of programming variety. Otherwise mere sports, movie or weather
channels would not be constitutionally permissible. Some Laender statutes
explicitly state that private broadcasting is seen as an addition to the
public-law programs and the degree of plurality of programming required by the
constitution is accomplished by taking into account the entirety of accessible
programming - thus combining the internal and external plurality approaches.(36)
d. State Supervision
Although broadcasting has
to be free from state influence, the Bundesverfassungsgericht has constantly
held that state statutes have to provide for "limited state
supervision" of broadcasters.(37) This is understood to be legal
supervision, not professional supervision. To justify this requirement, the argument
is made that the state is responsible for the legal conduct of the entities it
statutorily created.(38) Thus, Laender governments are constitutionally
permitted (and required) to report violations of the law by broadcasters and to
directly order a remedy in single cases.
Private broadcasting is
subject to a different system of supervision. A statute allowing private
broadcasters must - to safeguard the aforementioned purpose of the freedom of
broadcasting - regulate their entry to the market and their continuous
supervision.(39)
In accordance with that, every Land has established a "State Media
Authority" (SMA). Their duty is to license private broadcasters and to
monitor their compliance with the media law, especially with the requirements
of plurality and balance of content set forth in the RStV and in the media
statutes of the several Laender. The SMAs have the power to order "actions
securing diversity" which means they can order a private broadcaster to
allocate airtime to independent third parties(40) and to decree the establishment of
a PC(41)
(see supra b.); ultimately they can revoke licenses. Furthermore, they can
issue regulations on advertising and youth protection.(42) The main body of the SMAs is, with
the exception of Berlin/Brandenburg and Baden-Wuerttemberg, a plurality board
similarly structured as the BC of public-law broadcasters.
e. Antitrust
According to the rationale
that government regulation has to guarantee that the means of broadcasting are
not surrendered to one single group in society, a whole body of media antitrust
law has emerged(43).
Until December 31, 1996 a private broadcaster was allowed to operate two radio
and two television programs. The new RStV 1997 establishes - following the
American model - a market share system: An antitrust issue arises if one
company has "dominant opinion power", no matter how many channels or
stations it owns or is affiliated with. A "dominant opinion power" is
statutorily assumed in two cases: (a) A company with all the programs that it
is affiliated with reaches an average annual 30% share of all viewers. (b) A
company reaches slightly less than 30 % but has a dominant position in a
related media market and an overall evaluation reveals that the resulting
influence on public opinion equivalates a TV viewers' share of 30 %.
f. Conclusion
One must keep in mind that
in setting up this regulatory framework, the legislature - in the opinion of
the Bundesverfassungsgericht - acts in compliance with constitutional
requirements. The Bundesverfassungsgericht draws a strict line between
"contouration" and "limitation" of the freedom of
broadcasting. The first is only subject to a uniquely low level of scrutiny: As
long as such legislation serves the purpose of furthering the process of free
private and public formation of opinions, and is not vague, it has not even to
be justified under the reservation clause of Art. 5 2 GG. This only applies to
regulation going beyond the aforementioned parameters. Such regulation is
either an unconstitutional contouring statute(44) or a regulation that serves a government
interest outside the range of communications.(45)
5. The
"Freedom from State" Rationale
The freedom from state
rationale, repeatedly upheld by the Bundesverfassungsgericht(46), requires that the means of
broadcasting must not be in the hands of state. This principle safeguards the
intermediary function of broadcasting in the process of public opinion
formation and is thus strictly content-related.(47). It forbids any state influence on
content selection. The Bundesverfassungsgericht now interprets the principle
more leniently(48):
The state is only prohibited to (a) be a broadcaster itself and (b) have a
dominant influence on any broadcaster.
The conflict between the
responsibility of the state for the contouraton of The Broadcasting Clause
and the "Freedom from State" rationale gets obvious when the
Bundesverfassungsgericht writes: "It would not meet the constitutional
requirement of freedom of broadcasting if only government influence was
eliminated and broadcasting was handed over to the free interplay of (market)
powers.(...) In contrast, it is the responsibility of the legislature that
there is an overall programming supply which reflects the diversity of opinions
constituent for a free democracy."(49)
These words have never been
overruled.
6. The
"Basic Supply" Rationale
Another particularity of
German media law derives from the "dual system" of public-law and
private broadcasting. The Bundesverfassungsgericht takes it for granted that
broadcasters financed by advertisements and driven by the hunt for eye-balls
will not serve the purpose of opinion formation in the way the constitution is
held to require(50).
On the other hand, the Bundesverfassungsgericht has held that the constitution
does not prohibit private broadcasting completely. The only solution to that
discrepancy was to burden the public-law broadcasters with the duty to provide
for a "basic supply". They have to offer so-called
"quality" programming as a sort of "universal service" to
everybody to - strictly speaking - make allegedlz low-quality private
broadcasting constitutionally permissible. The consequences of this rationale
reveal the policy preferences of the Bundesverfassungsgericht: (a) as soon as
public-law broadcasting for some reason fails to provide "basic
supply", private broadcasting has to change its programming or shut down;
(b) the rationale justifies the broadcasting fee that finances public-law
broadcasters and the SMAs that supervise private broadcasters; (c) "basic
supply" also includes cable and satellite transmission which gives
public-law broadcasters a first pick on new transmission technology; (d) as the
Bundesverfassungsgericht has never reduced the activity of public-law
broadcasters to "basic supply", it guarantees their dynamic
development.
7.
Particular Limitations on the Editorial Freedom of Broadcasters
Summing up, a short list of
various restrictions on broadcasters should complete the picture of the
Sondersituation of German broadcasting.
a. License
All broadcasters are
entitled to be allocated a piece of spectrum of the airwaves or a place in
cable. Besides that, private broadcasters require a license issued by the SMA.
In this procedure, the reliability and organizational structure as well as the
program content are checked(51) on the basis of a program format proposal.
This is challenged by some authors as censorship.(52)
b. "Program
Standards"
Both public-law and private
broadcasters are bound by general standards for the content of their
programming: they have to report on full extent the diversity of views and opinions
in ethics, sciences and arts in the most possible breadth and completeness.
They have to ensure that all important societal forces in the region have their
views aired in the program and they have to provide sufficient time for the
coverage of controversial issues.(53) Furthermore they have to preserve the free
democratic basic order, human dignity and promote tolerance and communication
among peoples.(54)
Several kinds of
programming are statutorily forbidden, and criminalized or fined. It is
forbidden to encourage xenophobic hatred, to show violence against humans as if
it were harmless, to heroise war, to show pornography and to show people who
are dying or suffering in a way that abridges their dignity.(55)
c. Advertisement
Advertisement is strictly
regulated for both public-law and private broadcasters. Besides general
provisions about the content of commercials (not misleading, fit for children
etc.) and separation of programming and commercials, statutes regulate the
amount of commercials: Advertisement on public-law channels cannot exceed 20
minutes per day, no commercials are allowed on Sundays(56). There must not be more than 20 %
commercials per hour. On radio 90 minutes per day are allowed. Private
broadcasters may only insert commercials once every 45 minutes. In sports
events commercials may only be inserted in breaks(57). Public-law broadcasters are not
allowed to broadcast tele-shopping programming.(58)
d. Right of Reply
Everybody who was subject
to a factual allegation in a broadcast programming has a right of reply against
the broadcaster if she has a legitimate interest in the reply. The right has to
be exercised within six weeks after the challenged broadcast and the time given
to the reply cannot exceed the challenged part of the programming in length.(59)
e. Protection of the
Youth
Broadcast programming that
"on its face appears to be a severe moral danger to children and
adolescents"(60) is forbidden by law. Programming that is
"likely to endanger children and adolescents physically, mentally or
emotionally" is prohibited, unless it is broadcast after 11pm.(61)
f. Airtime For Churches
and Political Parties
According to the
constitutional provisions protecting actions of the churches (Art. 4, Art. 140 GG)
and political parties (Art. 21 GG), the RStV as well as the state media
statutes oblige broadcasters to provide airtime for these institutions.(62)
B. The
First Amendment and Broadcasting
In the
The most prominent promoter
of both broadcasting and its regulation was Herbert Hoover. As Secretary of
Commerce, he recognized the future of broadcast radio technology and enlarged
the scope of the 1912 Radio Act to cover commercial broadcasting (as
opposed to commercial telegraphy). Furthermore, he kept assigning new
portions of spectrum to commercial radio broadcasters. By the end of 1922 he
had licensed 576 stations throughout the
The question of spectrum
allocation remained the crucial issue. This opened the door to further
regulation by the FRC and since 1934 the Federal Communications Commission
(FCC) not only for content-neutral restrictions during the licensing process(69), but also for content-based
regulations during ongoing operations of the station.(70) With the advent of broadcast
television and - later - cable, the FCC and the courts elaborated the special
role of broadcasting with respect to editorial freedom(71) and cross-ownership issues.(72)
2. The
licensee as a public trustee(73)
As the license was regarded
a precious asset, everyone who got it from government for free could in return
be required to carry out various obligations.(74) The main goal was to supply viewers
and listeners with a well balanced mix of programming, with diverse opinions on
subjects of general interest and local origin. Although broadcasters' action
could never be considered as state action(75), the editorial and entrepreneurial
freedom of broadcasters has always been subject to more government influence
than that permitted by the First Amendment in respect of the print media.
a. Influence on
Editorial Freedom
aa. Diversity and
Quality
From the early days of broadcasting, the Commission used its licensing power and the "public interest" requirement to actively remove certain kinds of speech off the air