Media Concentration Monitoring

Media concentration control is a key element in ensuring diversity of opinion.

The core elements of the provisions of the Interstate Broadcasting Treaty, as regards safeguarding the diversity of opinions, include the monitoring of concentration and the positive securing of diversity. The objective is to ensure that the diversity of existing views is expressed to the widest and fullest extent.

The basis for this is the television audience share model. The audience share of television programmes is a key indicator in assessing whether a threat of an emerging dominant influence on the public opinion exists. The assessment includes all German-language television channels with nationwide distribution, as such also those of the public broadcasters. The details of the audience share model are regulated in §§ 60 to 68 and 120 MStV (Interstate Media Treaty).

The centrepiece of concentration regulation is § 60 MStV. It specifies that a company can broadcast an unlimited number of programmes on television at the nationwide-scale, either individually or through companies attributable to it, insofar as this does not lead to a position of dominant influence on opinion. Pursuant to the first sentence of the second Paragraph of this provision, it is presumed that a company has such a position of dominance if it manages to realise an annual average audience share of 30% with programmes attributable to it. The same applies if this share amounts to 25% and if the company has a dominant position on a related market with medial relevance, or if it has been determined after an overall assessment of its activities on the television market and related markets with medial relevance that the resulting influence on opinion corresponds to an audience share of 30%.

A bonus regulation allows for the deduction of two further percentage points from the actual audience share if a window for regional programmes is included, or of three percentage points if broadcasting time is allocated to third parties. Programming windows play a part in the positive safeguarding of diversity.

The assessment of which programmes and other media activities are attributable to a company, follows the ownership and participation relationships under company law. The conditions for the attribution of programming are regulated in § 62 MStV.

Pursuant to § 62 Para. 1 sentence 1 MStV, all programming organised by a company is initially attributed to it. In addition, all the programmes of another broadcaster are attributable to a company if the company holds a direct share of at least 25% of the capital or voting rights. In addition to direct participation, the audience shares of companies in which the company participates indirectly are also to be attributed to a company. An indirect participation exists if the initial company and another company are in an affiliated company relationship pursuant to § 15 of the Aktiengesetz [Stock Corporation Act], and if the other company holds at least 25% of the capital or voting rights of an operator (§ 62 Para. 1 sentence 2 MStV). Conversely, the company is allocated the audience shares of those companies that participate in it within the meaning of § 62 Para. 1 sentence 1 and sentence 2 RStV (by argumentum e contrario § 62 Para. 1 sentence 3 and § 29 sentence 2 MStV).

Under § 62 Para. 1 MStV, pursuant to § 62 Para. 2 MStV, a participation is considered equal if a company can individually or together with third parties exercise a comparable influence over an organiser. A comparable influence shall also be deemed to exist if a company or a company that is already attributable to it for other reasons pursuant to Paragraph 1 or Paragraph 2 sentence 1

  1. regularly shapes a substantial part of a broadcaster's transmission time by providing programme segments; orif this (affiliated) company by virtue of contractual agreements, statutory provisions, or
  2. in any other way holds a position which renders making essential decisions of a broadcaster on programme design, programme purchasing, or programme production dependent on the company's consent.