The German Broadcasting System is both a “dual system” - it includes public and private broadcasting - and a “federal system” - it includes centralized and de-centralized organizations. While the whole system works together, there are severel levels of responsibility and decision making which are interlinked, but act seperatly.

The system was introduced after WW II as a reaction to the misuse of radio broadcasting by the Nazi government. The (western) allied forces saw in the centralized system under governmental control one main structural reason for this misuse. They pushed for a decentralized public broadcasting system (under the responsibility of the Lжnder) which is not under (direct) governmental control and is not financed by the state but by the listeners/viewers themselves via a license fee.

Private broadcasting was introduced in the early 1980 also on the basis of “Lжnderlegislation”. As member of the European Union, German broadcasting legislation has to be in conformity with relevant EU legislation in the field of broadcasting, notahly the TV Directive of 1989 (Television without Frontiers) and the Amsterdam Protocol on Public Broadcasting.

The main elements in the German broadcasting legislation system are the following five levels:

The basis fort he German Broadcasting legislation is laid down in the constitution. There are three important elements in it

The Lжnder have to adopt a legal framework for (public and private) broadcasting within their territory. Normally, regional parliaments adopt two law:

Lжnderlegislation for Public Broadcasting has to follow the guidelines set by the constitutions. It has also to take into account rulings of the Constitutional Court.

The standard legislation includes, inter alia, the following elements

Of special importance is the so-called “Rundfunkrat”, the highest body for a public broadcasting station. According to a ruling of the Constitutional Court, the Rundfunkrat has to mirror the whole society. Members of the Rundfunkrat has to come from four different baskets: Cultural groups, Economy, Society and Policy. Policy representatives which can be related to a “state organ” (government, parliament, city council) have to be in a minority position. The Rundfunkrat elects the Intendant and the directors (there are mainly five directors under the Intendant for Radio, Television, Economy, Law and Technology). As far as the programme content is concerned the “Intendant” is independent and has not to follow a ruling by the Rundfunkrat. But the Rundfunkrat can with a certain quorum de-elect the Intendant.

The Lдnder are free to conclude treaties among them to erect an joint public broadcasting service. There are meanwhaile four so-called “Mehrlдnderanstalten”: Norddeutscher Rundfunk/NDR (Lower Saxony, Schleswig-Holstein, Hamburg and Mecklenburg Vorpommern), Mitteldeutscher Rundfunk/MDR (Saxony, Saxony-Anhalt and Thuringia), Rundfunk Berlin-Brandenburg RBB (Berlin and Brandeburg) and Suedwestdeutscher Rundfunk/SWR (Baden-Wьrtemberg and Rheinland-Pfalz).

The public broadcasting organizations of the Lжnder produce today a full 24 hour TV programme and three to five radio programms for distribution within their territory (on air) and via cable and satellite in whole Germany and abroad.

The so-calIed “First Federal Programme” (ARD) is a joint venture among the Lжnderprogramms on the basis of a State Treaty among the Lжnder.

Lжnderlegislation on private broadcasting include the following main elements

The composition of the organs of the “Landesmedienanstalt” is similar to the composition of the “Rundfunkrat” for public broadcasters. Members have to represent different groups of the society and the state has to be in a minority position. The “Media Council” is the highest organ.

The procedure for licensing is as follows: As soon as an unused frequency is identified, the Landesmedienanstalt publishes a call with criteria, guidelines and datelines. On the basis of an open and transparent evalution the “Media Council” of the landesmedienanstalt decideds whom to allocate the frequency. Decisions are often linked to special offers from applicants, for instances to create jobs in the media economy of a special region.

The licence is given for seven to ten years with a chance for a renewal. Under certain circumstances - in particular if there are conflicts with the law - the licence can be withdrawn. If a private bvroadcaster has a licence for one land, it is allowed to distribute the programme via cable and satellite in whole Germany. But if the broadcasters wants to have a distribution via air, it has to ask for another licence in the respective land. This leads to the situation, that the leading private TV broadcasters in Germany like RTL, SAT 1 and Pro7, have to have 16 licences in all the 16 Lжnder if they want to distribute their programme over air.

The “Landesmedienanstalten” have common thematic councils where all sixteen Lдnder are represented. Councils cover issues like programme evaluation, advertising, youth protection, technology development, competition and Concentration etc. They can also form a joint “Landesmedienanstalt”. This has happened so far only once in the case of Berlin aned Brandenburg.

To guaranmtee a minimum of equal standards and harmonized rules in whiole Germany, the Lænder have concluded a number of soæ-called Staatsvertræge”..

The main “Staatsvertræge” are related to

The “Staatsvertrжge” have to be ratified by the regional parliaments. This means that, for instance in the case of licence fee, that one regional parliament can block the introduction of a new licence fee. The “Staatsvertrжge” are negotiated by the offices of the prime minister of the Lжnder.

The Constitutional Court decides cases where

One of the most famous ruling of the court was in 1961, when the Federal Chancellor Konrad Adenauer, who was very critical against the independent ARD, wanted to have a second TV Channel under control of his government. The Constitional Court decided that such a model would be in conflict with Article 5 of the constoition and rejected the proposed law. Instead of the so-called “Adenauer TV”, the ZDF was established on the basis of a “State Treaty” among 16 Lжnder with clear safeguards that the government can not control the programme.

Another famous ruliong was related to the law on the “Westdeutscher Rundfunk” of Nordrhein Westfalia in 1990. In this ruling the Court made clear that the composition of the “Rundfunkrat” has to be based on the fours baskets, mentioned above, and that governmental and party representatives in the council should follow not directives of their political constituencies.

The Federal government has no comptences for broadcasting. It can not licence neither a radio nor a tv programme. There is only one exception: The German Foreign Radio and Television Services, the “Deutsche Welle”, operates on the basis of a federal law, but can not be distributed within germany.

However the federal organs are responsible for telecommunication and, partly, for data communication. In the past the only thing it could do with regard to broadcasting was to identify frequencies and to give them to the Lжnder (which decided which frequency goes to the public and which to the private broadcasters). The technical convergence is undermining this clear distinction.

There is a structural conflict now with regard to new Internet based services. There are two nearly identical legal instruments - a federal law on new services and a State treaty on new services which tries to bring broadcasting related new services under Lжnderleguislation and non-broadcasting related new services under Federal legislation. This rather artifical seperation has created a lot of confusion, in particular with regard to the role of ISPs in providing access to websites with content, similar to content which is broadcasted.