On 15 May 1997, the German Commission on Concentration in the Media (in the following as abbreviation in German:"KEK") has been constituted on the basis of the provisions of the third amendment to the Inter-State Agreement on Broadcasting (Agreement on Broadcasting between the Federal States in United Germany incorporating the third amendment adopted between 26 August and 11 September 1996, came into effect on 1 January 1997 - in the following as abbreviation in German: "RStV".

Mission of the KEK
The Constitutional principles mandating diversity of opinion in television

The KEK is responsible for monitoring and enforcing compliance with the legal provisions designed to ensure diversity of opinion in nationally-transmitted private television. In procedures concerning applications for broadcasting licences for nationally-transmitted programmes or changes in broadcastersԠownership structures the Commission examines whether a company is able to exercise a predominant impact on public opinion by private broadcasting with the programmes attributable to it or by changes in the ownership structure or by both of them. The KEK functions as a decision-making body and as an agency promoting a uniform standard of national media concentration control.

Mission of the KEK

The KEK is an independent regulatory body with nationwide jurisdiction. It examines whether diversity of opinion is assured in connection with the nationwide distribution of television programmes (Article 36 paragraph 1, first sentence RStV). In this capacity the Commission acts for each state supervisory authority for private broadcasters which has received a licence application from a private broadcaster or which has licenced a private broadcaster subject to concentration review. In procedures concerning changes in broadcastersԠownership structures the KEK can act for several state supervisory authorities for private broadcasters. KEK decisions are binding for each state supervisory authority for private broadcasters.

The Commission examination is primarily based on section 26 RStV which reverts to viewer ratings. Under that provision a company may by itself or through companies attributable to it broadcast nationwide in the Federal Republic of Germany an unlimited number of television programmes, unless it is thereby able to exercise a predominant impact on public opinion. Within the meaning of section 26 it shall be assumed that it has a predominant impact on public opinion if the programmes attributable to one company achieve an average annual viewer rating of 30 per cent. The same shall apply if the company reaches an audience share of 25 % and holds a dominant position in a related, media-relevant market or an overall assessment of its activities in television and in related, media-relevant markets suggests that the influence exercised as a result of those activities is equivalent to that of a company with a viewer rating of 30 per cent. See about this the KEK decisions in the case Premiere Medien GmbH & Co. KG (reference KEK 028 from 26 January 1999) and in the case RTL Television GmbH (reference KEK 040 from 21 September 1999).

Beyond the examination whether the provisions for ensuring plurality of opinion applying to private broadcasters have been complied with the KEK has the function to achieve more transparency in all matters regarding the sector of private broadcasting which can be received nationwide. This includes an annual list of television programmes established by the KEK which contains all TV-programmes, their broadcasters and shareholders. In addition, the Commission has to present every three years or upon the request of the states a report on the state of media concentration and on measures to secure diversity of opinion in the private broadcasting sector, taking into account

1. the interpenetration of television and related, media-relevant markets,
2. the horizontal concentration between broadcasters in different transmission areas, and
3. international concentration in the media sector.

It shall also comment on the application of Articles 26 to 32 and on any need to amend these provisions.

The Constitutional principles mandating diversity of opinion in television

Art. 5 of the German Constitution from 1949 provides for free speech rights; free reporting by broadcast is explicitly included. In a long line of cases the Federal Constitutional Court had to give meaning to this provision; and in doing so it has developed important principles. They require that the electronic media offer comprehensive information and reflect the diversity of the existing spectrum of opinions.

Under the German Constitution the powers to regulate the electronic media are given exclusively to the states (Länder). The case law of the Federal Constitutional Court defines specific obligations to be observed by state legislation dealing with the broadcast medium. The regulation is under a positive duty to enact rules ensuring that television and radio will serve the purpose to promote the free formation of individual and public opinion. This aim is promoted by a standard of "balanced diversity" of all broadcast programs; communication law has to establish a framework which will allow different viewpoints to gain access to the medium. Such a standard mandates safeguards against concentration of ownership in the broadcasting industry and against accumulation of power to dominate public opinion. For this reason the legislative bodies of the Länder are specifically obliged to provide for mechanisms which will contain the concentration of control of media outlets; they have to do this in a way which will prevent the emergence of power to dominate communications.