Cable network dispute: Bayerischer Rundfunk prevails with Loschelder before the first higher administrative court
Within the context of the conflict between public service broadcasters and the two regional cable network operators Vodafone Kabel Deutschland and Unitymedia, the Bavarian Higher Administrative Court (BayVGH) is the first higher administrative court to have issued a decision on the subject matter of the dispute: it ruled in favour of the public service broadcasters (decision of 3 March 2016, Ref. 7 CE 15.1741).
The cable network dispute pertains to the question whether the cable network operators are allowed to condition the broadcasting of public programs on payment of a feed-in remuneration by the public service broadcasters. The public service broadcasters contest any obligation to pay such remuneration and point out that by transmitting the broadcast signal the network operators are complying with their legal duties and, more importantly, are acting in their own economic interest – their own cable network products would not be marketable without the ARD and ZDF programs.
Regarding the analog transmission of signals in accordance with the Bavarian Media Law (BayMG), the Bavarian Higher Administrative Court has confirmed that the network operators are obliged to broadcast programs regardless of whether there is a remuneration agreement with the public service broadcaster. The preliminary injunction – the Bavarian Higher Administrative Court being the last instance – dealt with the transmission of ARD-alpha, the educational program of Bayerischer Rundfunk. After the program had changed its name from BR-alpha to ARD-alpha in summer of 2014, Kabel Deutschland had announced its intent to stop the analog network feed-in in Bavaria. Kabel Deutschland reasoned that apart from the name change – Bayerischer Rundfunk had not paid any feed-in remuneration since 1st January 2013. The Bayerische Landeszentrale für neue Medien (BLM) responsible for supervising Kabel Deutschland deemed this to be in accordance with the broadcasting laws. In contrast to this view, the Administrative Court in Munich had issued an injunction ordering the BLM to ensure that ARD-alpha is being transmitted irrespective of a feed-in remuneration being paid; such injunctive order has now been confirmed by the Bavarian Higher Administrative Court.
So far all 4 administrative courts – with the exception of the administrative court in Hamburg in an auxiliary request – and all 10 civil courts dealing with the aspects of broadcasting law in this dispute have confirmed the legal opinion advocated by the ARD broadcasters.
Bayerischer Rundfunk, like the other ARD broadcasters in this dispute, are being advised by Dr. Raimund Schütz, Dr. Kristina Schreiber and Dr. Maike Friedrich.