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might result in a less strict “must-carry” regime in the future with respect to analog transmission. However, in this respect the
Amendment has yet to be enacted into state law by the respective States. In addition, the Amendment also modifies the
“must-carry” rules for digital transmission, changes the existing rules for the (technical) access to cable networks and in
principle restricts the number of programs transmitted by the public broadcasters to the number of programs existing as of
April 1, 2004.
The Regulatory Bodies
Each German state has established its own independent regulatory body, the state media authority
(Landesmedienanstalt), for the regulation of the private broadcasting sector, except for the states of Berlin and Brandenburg,
which have established a joint regulatory body. In Hesse, the state media authority is the LPR Hessen (Hessische
Landesanstalt für den privaten Rundfunk), whereas in North Rhine-Westphalia, it is the LfM North Rhine-Westphalia
(Landesanstalt für Medien Nordrhein-Westfalen).
The state media authorities are primarily responsible for licensing and supervision of private broadcasters and the
allocation of transmission capacities for radio and television channels. In most states, they are also required to run or to
supervise “open channels” (amateur radio and television channels). They are also in charge of the regulation of navigators,
which form part of electronic programming guides. The state media authorities have various powers to enforce compliance
with the law. Any decision of the state media authorities can be challenged before the competent administrative courts.
License and Notification Requirements
Private broadcasters are required to obtain licenses from the competent state media authority. In contrast, the operation
of cable networks for the transmission of radio and television programs does not require a license from a state media
authority. In certain states, however, a notification to the state media authority is required in connection with the operation of
cable networks. In addition, the transmission of certain radio and television channels transmitted via cable networks must be
notified. Both notification obligations apply in Hesse and North Rhine-Westphalia.
Allocation and Use of Transmission Capacities
The State Broadcasting Treaty sets forth the general rules for the allocation of analog transmission capacities and in
more detail the rules for the allocation and use of digital transmission capacities and digital playout facilities for television
channels. The allocation and use of analog transmission capacities for both radio and television channels and digital
transmission for digital radio capacities are also governed by the laws of the respective states.
Allocation and Use of Analog Transmission Capacities
Regulations regarding the analog transmission of radio and television channels vary from state to state and cable
network operators are generally not free to allocate analog channels in their networks. Rather, the state media authorities
make allocation decisions regarding the programs that will be transmitted over the cable networks, in order to ensure a
diversity of opinions in the mix of channels and programming.
It is unclear whether cable network operators are entitled to decide how much of their capacity is allocated for the
broadcast of television or radio services and how much of their capacity is allocated to other services such as high speed
Internet. It is also unclear whether or not the cable network operators can freely determine which capacities they use for
analog versus digital transmission. The state media authorities seem to be of the opinion that the cable network operators are
not entitled to decide these questions. The state media laws of Hesse expressly state how many cable channels and which
frequencies have to be used for the analog transmission of television programs. However, some channels, which are generally
allocated to digital use, can also be used for analog transmission. In contrast to the situation in Hesse, the state media laws of
North Rhine-Westphalia do not contain such detailed provisions.
The specific allocation of channels varies from state to state and rules relating to the allocation of radio channels are
usually less strict than those relating to television channels. In Hesse and certain other states, the state media authorities make
allocation decisions for all of the analog channels available in the network, i.e. there is no discretion of the cable network
operator with regard to the allocation of analog programs. Other states, like North Rhine-Westphalia, have a less strict
approach: The respective state media laws define a number of “must-carry” channels while the network operator is entitled to
allocate the remainder of its capacity. An increasing number of states have adopted even more liberal allocation regimes
which generally grant network operators the right to allocate the majority of channels, subject to certain legal constraints and
as long as such allocations do not conflict with the state media authority’s policy with respect to the diversity of opinions.
But, also in these states, a certain number of channels are reserved either for “must-carry” channels or for allocation by the
state media authority.
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