9th December 2004National Broadcasting Council1 Bernd Malzanini Kommission zur Ermittlung der Konzentration im Medienbereich (KEK) Potsdam, Germany PROMOTION OF MEDIA PLURALISM - EUROPEAN EXPERIENCES AND POLISH EXPECTATIONS Warsaw, 9 th December 2004 Regulating Media Concentration – The experience of Germany

9th December 2004National Broadcasting Council2 The German Broadcasting System Public Service Broadcasting Obliged to provide the public with basic services Financed mainly by licence fees Independent of national and regional governments Internal regulation (Broadcasting Council) Private Broadcasting May not be subject to the same strict programming standards as public service broadcasters Financed by advertising Meets the interests of its advertising customers External regulation (State Authorities for the Media)

9th December 2004National Broadcasting Council3 Supervision of Public Service Broadcasting Broadcasting Council Monitors independence and diversity in programming Pluristically composed of representatives of the state and relevant social groups Delegates elected in parliament or sent from relevant groups Administrative Council Ensures that administration and financial management comply with the regulations Composed and elected like above

9th December 2004National Broadcasting Council4 Supervision of Private Broadcasting State Authorities for the Media (LMAs) Independent („state- free“) legal entities Financed by about two per cent of the licence fee Licencing and monitoring duties Commission on Concentration in the Media (KEK) Joint institution of the states (Länder) Serves as a special agency to all LMAs Independent, financed by the LMAs Promotes a uniform standard of national media concentration control

9th December 2004National Broadcasting Council5 Layers of Concentration Control General Competition Law EU Merger Control Act Against Restraints of Competition Enforced by EU Commission / Federal Cartel Office Purpose: To ensure a free and effective competition; to prevent abuse of dominant economic positions Sector-Specific Control Interstate Treaty On Broadcasting: Nation-Wide Television Enforced by the KEK Purpose: To safeguard plurality of opinion by preventing any company or entity from dominating public opinion

9th December 2004National Broadcasting Council6 Development Until 1997 Only 2 TV licences and 2 radio licences allowed per company; of those not more than 1 could be for a range of full programming and for 1 news channel Further restrictions on ownership of broadcasters of full programmes and news channels Since 1997 No limitations on the number of licences per company 100 % ownership is allowed Audience share threshold as new policy instrument

9th December 2004National Broadcasting Council7 K E K Founded in permanent and 2 substitute members Experts on broadcasting and commercial law Appointed for 5-year terms by the heads of the German states Not subject to instructions Receive adequate remuneration for their work Office located in Potsdam

9th December 2004National Broadcasting Council8 Mission To ensure a plurality of opinion in nationally-transmitted private television Involved in procedures concerning applications for TV broadcasting licences changes in broadcasters’ ownership structures the allocation of airtime for independent third parties KEK decisions are binding, but subject to review by the KDLM

9th December 2004National Broadcasting Council9 Regulatory Concept Determination of Audience Shares Legal Presumptions 30 % audience share or 25 % audience share + a dominant position in a related, media-relevant market or Overall assessment of a company’s media activities = 30 % audience share

9th December 2004National Broadcasting Council10 Determination of Audience Share Audience (“Market”) Public service broadcasting and nationally-transmitted private programmes (only those in German language) Audience Share Average viewer ratings of the last 12 months Representative sample of TV users of at least 3 years Provided and published by a private service provider Same base as used by broadcasters for calculating the costs of commercial spots

9th December 2004National Broadcasting Council11 Attributing Audience Share Direct Participation Ownership of at least 25 % in a broadcaster Indirect Participation In case of affiliates in the meaning of the Companies Act Comparable Influence Regular supply of substantial parts of programming Position which confers decisive influence on essential programming-related decisions

9th December 2004National Broadcasting Council12 Audience of TV Broadcasters Average Ratings 2003

9th December 2004National Broadcasting Council13 Pro7SAT.1 Group RTL Group Other Privates TV Broadcasting Group Share Ratings Oktober 2004 Public Service

9th December 2004National Broadcasting Council14 Cross-Media-Ownership National Level (Interstate Treaty) No specific regulations But: KEK considers „related, media-relevant markets“ when determining a company‘s influence on opinion- formation State Level Limitations on broadcast ownership by the press Different models are used to prevent dominant opinion- forming positions

9th December 2004National Broadcasting Council15 Sanctions Give Up Attributable Shareholdings Reduce Influence in Related Markets Take Action to Safeguard Pluralism Grant airtime to independent third parties Establish a programming advisory council Worst Case: Withdrawal of Licence

9th December 2004National Broadcasting Council16 Transparency Report on Media Concentration and Measures to Secure Plurality of Opinion List of Licensed Programmes and their Owners Annual Reports Press Releases Published Decisions Diagrams of Ownership Structures Audience Shares

9th December 2004National Broadcasting Council17 Diagram of Ownership Structures RTL Group.ppt