In order to broadcast programmes on television or radio, private broadcasters must obtain licensing from the proper legal authorities, regardless of whether the programme is broadcast via antenna, cable, satellite, or the Internet.
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Broadcast licences are granted by the media authorities in each state. Broadcasters may apply at any of the state media authorities to obtain licences for programmes to be broadcast throughout Germany.
After the application is reviewed and a decision is made by the Commission on Licensing and Supervision (ZAK), the applicant may be granted a licence for nationwide broadcast. Since the 2008, the ZAK has had binding authority over the licensing of all television and radio programmes broadcast at the national level in Germany and the granting of certificates of non-objection for broadcast media content and services.
The special case of Internet television
In the case of Internet television, certain distinctions need to be made: if the programme in question is a linear, simultaneous broadcast of video content in a journalistic/editorial format and aired within the context of a broadcast schedule, then it is to be treated as television and requires a licence.
The Media Authorities are working to simplify the process for this kind of content and are calling for legislators to introduce a disclosure requirement in lieu of a licence, similar to Internet radio.
No licence required for Internet radio
Radio programmes that are broadcast exclusively over the Internet can do so without having to obtain a licence. They are merely required to submit a form disclosing the contents of their programming and other information (Interstate Broadcast Agreement, § 20b). However, they must still comply with all legal requirements with regard to programming, especially those pertaining to the protection of minors and the placement of advertisements.
Broadcast media subject to licensing is also differentiated from other electronically disseminated audio-visual content, especially on the Internet. In particular, this includes video-on-demand services, which allow users to stream or download content like movies and television series.
These forms of media are, however, still subject to legal supervision.
What is broadcasting, and what isn’t?
Broadcasting includes any linear programme intended for simultaneous reception by the general public and the dissemination of video and/or audio content according to a schedule and using electromagnetic means of transmission. Broadcast programming is characterised by a sequence of content organised according to a schedule. Broadcasts are cohesive with regard to content, closed, and time-limited parts of a broadcast programme.
Not considered to be broadcast media are content and services that:
- are not intended to be received by 500 more people at any given time,
- are intended for immediate replay after being saved on a receiving device,
- are of exclusively personal or familial interest,
- are not presented in a journalistic/editorial format,
- consist of programmes that can be unlocked by paying for them individually.
The preliminary requirements to receive a licence for content and services to be broadcast nationwide are found in the Interstate Broadcast Agreement (§§ 20 et seq.); otherwise, in the laws governing media in each state.
A licence may only be granted to natural or juridical persons when:
- they are not limited in legal capacity,
- they have not been deprived of their capacity to hold public office by court order,
- they have not forfeited their basic right of free expression according to Article 18 of the Basic Law for the Federal Republic of Germany (Grundgesetz),
- they are not prohibited from forming associations,
- their place of residence or headquarters is located in the Federal Republic of Germany, another member state of the European Union, or another state party to the European Economic Area Agreement, and may be subjected to judicial proceedings,
- they can provide assurance that they will broadcast in accordance with the relevant statutory provisions and any administrative acts passed on this basis.
For juridical persons (in particular companies), these requirements must be fulfilled by their legal or statutory representatives. Corporations may not be granted a licence unless they issue shares only as registered shares or non-voting preferred shares.
The State may not operate broadcasting services.
Juridical persons governed by public law (with the exception of churches and universities), as well as political parties, may not operate broadcasting services. This also applies to companies for which the State is a majority shareholder.
Investigation of media concentration
Investigation of media concentration
Broadcasters must also fulfil legal requirements pertaining to media concentration. A company may broadcast an unlimited number of television programmes throughout the Federal Republic of Germany, either directly or indirectly, unless this allows it to exercise a controlling influence; private broadcasting must generally indicate a plurality of opinion.
Important political, ideological, and social groups shall be given adequate opportunity to express themselves in the full programme service; minority views shall be taken into account.
A controlling influence shall be assumed if the programmes attributable to one company achieve an audience share of 30%. When evaluating controlling influence, a company’s activities in other media-related markets (e.g. radio, print media, online media) shall also be taken into account.
The final decision on issues related to media concentration with regard to nationwide television broadcasts lies with the Commission on Concentration in the Media (KEK, Kommission zur Ermittlung der Konzentration im Medienbereich), which functions as the decision-making body for the state media authority granting the licence.