Anticoncentration measures St. Petersburg

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

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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

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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

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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

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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

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K E K

• Founded in 1997
• 6 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

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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
  reviewby the KDLM

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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 companys media
  activities 30 audience share

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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

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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

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Audience of TV Broadcasters
Average Ratings 2003
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TV Broadcasting Group Share
Pro7SAT.1 Group
Public Service
RTL Group
Other Privates
Ratings Oktober 2004
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Cross-Media-Ownership

• National Level (Interstate Treaty)
• No specific regulations
• But KEK considers related, media-relevant
  markets when determining a companys influence
  on opinion-formation
• State Level
• Limitations on broadcast ownership by the press
• Different models are used to prevent dominant
  opinion-forming positions

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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

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Transparency

• Report on Media Concentration and Measures to
  Secure Plurality of Opinion
• List of Licensed Programmes and their Owners
• Annual Reports
• http//www.kek-online.de/
• Press Releases
• Published Decisions
• Diagrams of Ownership Structures
• Audience Shares

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Diagram of Ownership Structures
RTL Group.ppt