DLA Piper wins landmark broadcasting dispute

DLA Piper has obtained two landmark decisions on central broadcasting law issues for ProSiebenSat.1 TV Deutschland GmbH and Sat.1 SatellitenFernsehen GmbH in a dispute with the state media authorities of Rhineland-Palatinate (LMK) and of Hesse (LPR) at the Federal Administrative Court (BVerwG).

The appeal proceedings concerned the legality of the license for the nationwide television channel SAT.1. This licence has been granted to ProSiebenSat.1 TV Deutschland GmbH by the state media authority of Hamburg/Schleswig-Holstein (MA HSH). It was issued under the condition that the previous licence for SAT.1, which has been granted by the LMK in 2008, is returned by its current holder Sat.1 SatellitenFernsehen GmbH.

After the actions for annulment of the new licence brought by LMK and LPR had already been unsuccessful in the lower courts, the Federal Administrative Court has now also rejected the appeals of the two state media authorities in last instance and confirmed the licence granted to ProSiebenSat.1 TV Deutschland GmbH. In August of last year the Federal Administrative Court had already rejected a motion for interim measures by a third party claiming detriments as a result of the planned change of the licence holder. Unlike the Higher Regional Court the Federal Administrative Court now generally denied the state media authorities’ right to sue. The Higher Regional Court had still assumed such right for the LMK.

The Federal Administrative Court has ruled that actions brought by state media authorities are inadmissible when they are directed against a licence for a nationwide television programme granted by another state media authority. In this respect, according to the court, a state media authority does not have any entitlement. Such entitlement neither arises from the fundamental right of freedom of broadcasting (Article 5 (1) sentence 2 of the German constitution) nor from an “ultimate responsibility for the legality of broadcastings in the respective purview of each state media authority”.

The decisions have fundamental importance. In 1997 the Federal Administrative Court had confirmed such ultimate responsibility of the state media authorities on basis of the Interstate Broadcasting Treaty in force then and in view of constitutional protection duties. Yet, the Federal Administrative Court no longer adheres to this in view of amendments to the Interstate Broadcasting Treaty which came into force mainly in 2008. Rather, in the opinion of the Federal Administrative Court, the current licensing and supervisory precludes ultimate responsibility of the individual state media authorities when it comes to licensing of nationwide broadcasters. With the new regulation the decision on the licensing of nationwide broadcasters had been transferred to joint bodies of the state media authorities, in particular the Commission for Licensing and Supervision (ZAK), which makes binding decisions with the majority of its legal members.

Moreover, the Federal Administrative Court did not follow the constitutional objections raised by the state media authorities against the reorganisation of media supervision introduced in 2008. The fact that the pluralistically composed decision-making bodies of the state media authorities lost a considerable amount of importance is compatible with the requirements of Article 5 (1) sentence 2 of the German constitution as well as with the principles of federalism and democracy.

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