PHOTOMORPHIC PTE. LTD. / Fotolia
In this framework, the KEK examines whether a company predominantly gains its power of opinion through the granting of television licenses or by changing the ownership structure. For this purpose, it calculates the audience shares attributable to each company.
What is media concentration control?
Media concentration control aims to ensure a diversity of independent providers of media content. The aim is to prevent individuals from exerting a decisive influence on opinion-forming. It must therefore be ensured that there is a minimum level of independent media offerings. The Federal Constitutional Court justifies the necessity of media concentration control with Article 5 of the Basic Law and relates it primarily to broadcasting. Television, with its suggestive power, topicality and broad impact, is considered to be the most powerful medium in terms of opinion.
Mandate
The Commission on Concentration in the Media (Kommission zur Ermittlung der Konzentration im Medienbereich, KEK) has the mandate of examining the compliance with statutory provisions in safeguarding the diversity of opinion in nationwide private television, and is additionally tasked with taking decisions relevant to this objective. Within the sense of uniform concentration control, it acts as a decision-making body and mediating authority for all state media authorities. Its decisions are binding.
Responsibilities
When deciding on the authorisation of a licence, or when amending a licence, KEK examines whether there are no objections in terms of safeguarding the diversity of opinion.
Changes to the participation structures of broadcasters or merges of licensed broadcasters might also result in dominant influence on opinion. Pursuant to Section 63 of the Interstate Media Treaty (MStV), television broadcasters and the parties who participate in them must therefore give prior notification of any planned changes to the participation structure.
KEK proposes measures to safeguard diversity and counteract any dominant influence of opinion and high audience shares. This includes, among others, the allocation of broadcasting time to independent third parties and the implementation of regional broadcasting windows in accordance with §§ 59 Para. 4, 65 and 105 Para. 4 MStV
Regardless of whether or not a new programme has been approved or if there has been a change in the participation structure; a company can acquire a dominant influence over public opinion by increasing its audience share or through the disappearance of competing providers. For these cases, in § 60 Para. 4 MStV, KEK stipulates measures to reduce the dominant influence.
The audience share is the decisive criterion to determine the existence of a dominant influence on opinion. The audience share of the respective programmes is determined by the KEK in accordance with § 61 MStV. The values are average. It indicates which proportion of total daily viewing time can be attributed to a particular programme for a specific period of time.
According to § 40 Para. 4 sentence 3 of the GWB [Law Prohibiting Restraints of Competition], consultation with KEK must precede any antitrust law proceedings relating to the nationwide distribution of television programmes.
In the procedure for ministerial approval pursuant to § 42 of the GWB, the KEK is given the opportunity to comment on cases concerning the nationwide distribution of television programmes together with the Monopolies Commission and the Supreme State Authorities.
Every three years, KEK publishes a media concentration report on the development of media concentration and measures to safeguard the diversity of opinion in private broadcasting. KEK's media database contains information on companies' participation in nationwide television, radio, press, and online ventures.
Legal Basis of KEK
The regulations on the responsibilities of KEK and on the organisational structure of media supervision are found in §§ 60 to 67, 104 to 107 and § 120 MStV.
Considering the existing interfaces to competition regulations, the federal legislator has expressed the wish for KEK to cooperate more closely with the Federel Cartel Office in matters relevant to media law in the ninth amendment to the Law Prohibiting Restraints of Competition (GWB).
The constitutional basis for safeguarding the diversity of opinion is underpinned by the case-law of the Federal Constitutional Court on the freedom of broadcasting in Art. 5 Para. 1 sentence 2 of the Basic Law. According to the German Basic Law, the states of the Federal Republic of Germany are obliged to create and maintain a broadcasting order that promotes, and does not impair, the freedom of opinion formation.
Jurisdiction of the Federal Constitutional Court
In what are by now 14 broadcasting rulings, the Federal Constitutional Court refers to the legislator's duty to take precautions that serve to "realise and secure the highest possible degree of equal diversity in private broadcasting" (cf. BVerfGE 73, 118, 159). "In particular, it is incumbent upon the legislator to counter tendencies towards concentration in good time in the most effective manner possible, since undesirable developments are particularly difficult to reverse" (BVerfGE 73, 118, 160). This means that particular emphasis must be placed on combating medial concentration in good time, i.e., before any faits accomplis, and that this is composed of preventive instead of merely repressive elements. In the decisions of the Court on German Sports Television (DSF) dated 18/12/1996 (BVerfGE 95, 163, 172 f.) and on brief television reporting dated 17/02/1998 (BVerfGE 97, 228, 258, 266 f.), it was clarified that the prevention of any dominant influence on opinion not only requires effective precautions against concentration at the level of operators, but also sufficient measures against information monopolies.
The legislator's mandate to shape broadcasting regulation continues to exist against the background of increasing horizontal and vertical integration on the media markets and technical media convergence.