08/01/2003

Germany: The press came under the private sector and broadcasting came under the public sector, according to the principle of “publizistische gewaltenteilung” and as a result of the federalist system which had been set up in Germany as a reaction to the totalitarian Fascism regime. The Constitution thus made the individual States in the Federation responsible for regulating their own broadcasting systems(1). State conventions or treaties were used to implement a minimum of general measures, which were necessary to ensure that the broadcasting system functioned adequately throughout the whole of Germany. Any eventual power struggles between the States themselves - or between the States and the Federal Government, which held overall responsibility for telecommunications – were arbitrated by the Federal Constitutional Tribunal, whose decisions carried legal weight.
The “first judgement on broadcasting”, which was called the “TV Adenauer” judgement, was handed down on February 27th 1961. It upheld the institutional freedom of broadcasting in Germany and annulled the Federal Government’s previous decision regarding the foundation of a second television channel as being contrary to the principles of the Basic Law. When the second German channel, ZDF, was created in 1962 it was only on the basis of a convention which had been signed by all the States.
The introduction of private television channels in Germany originated as a direct result of judgements from the Federal Constitutional Tribunal. The “third judgement on broadcasting”, which was handed down on June 16th 1981, raised the question of the validity of the public service broadcasting monopoly - but without authorising private broadcasting. The dearth of frequencies for terrestrial broadcasting meant that it was impossible to meet the needs of the basic principle of pluralism. The consequence of this judgement was the development of cable TV in Germany.
On November 4th 1986 the “fourth judgement on broadcasting” authorised the coexistence of public and private broadcasting. This judgement also put an end to the division – press in the private sector, broadcasting in the public- which had hitherto existed regarding the control of the media.
The States then had to adapt their own legislation to the fact that broadcasting had now been opened up to the private sector. As the broadcasting legislation in each State had been relatively similar, it did not prove too difficult for them to adopt an overall system of regulations – first at regional level, then at national level. In 1987, the State Convention on the new broadcasting order instituted a dual structure for the broadcast media in the Federal Republic of Germany.
Private and public operators adopted two different approaches to respecting the basic principle of pluralism. The public sector, which provided a “basic service”, maintained “internal pluralism” in terms of the programme planning it carried out for each television channel.
The private sector, which provided a “standard service”, maintained “external pluralism”. This meant that pluralism arose from a competitive situation which resulted in a minimum of three channels broadcasting in the same area at the same time. The public sector was under the control of integrated committees, while private television stations were controlled by regulating authorities in the States which granted them their licences(2). These procedures should have lead to the creation of a considerable number of television stations, but this did not happen due to a combination of pragmatism, technical requirements and lack of financing. The technical problem was that there were few terrestrial frequencies available and that the space on cable was limited – these factors kept the number of broadcasting authorisations down. The financial problem was that a considerable level of investment was needed to finance a new television channel – which meant that only a small number of new ones were set up(3).
German legislators wanted to ensure that the public television sector(4) was in the best possible position to compete in the broadcasting market. They wanted to make sure that public television did not fall prey to the financial problems which were so common in the broadcasting sector so, under the terms of the German Constitution, the main source of funding for public broadcasting had always been television licence fees. This meant that the public television channels in Germany were stable and well-financed, so that they were able to maintain high viewing shares – a situation which, in turn, forced the private sector to improve the quality of its programmes. Two factors enabled the public German television channels to face up to the competition offered by the commercial channels: the overall confidence of the public that the public channels would provide them with programmes which interested them and which reflected their own culture(5), and the efforts made by the federal and regional authorities to ensure that the public channels received sufficient financing to meet their obligations.

Belgium: The Institut National de Radiodiffusion (National broadcasting Corporation) was created in 1945. It enjoyed a certain amount of independence from the government due to the fact that its internal structure was, to a large part, dictated by the multi-lingual nature of Belgium.
The constitutional reform which took place in 1975 transferred full powers to the speech communities in terms of cultural matters. Public broadcasting was to evolve differently in the French-speaking and Flemish-speaking areas.
The French-speaking community: The membership of the Board of Directors for the RTBF, the public broadcasting body, had to reflect the political affinity of the community’s elected Assembly. Nevertheless, the Executive appointed the RTBF’s controller, on the basis of recommendations from the Board of Directors.
The RTBF’s monopoly, however, was only theoretical, as there was considerable competition from Tele-Luxembourg - which had been authorised to set up a permanent frequency band between Luxembourg and its Brussels studios in 1983.dual system official. Tele-Luxembourg became a Belgian company, RTL TVI, which was granted the television advertising monopoly.
A decree which was issued on July 4th 1989 put an end to RTL TVI’s advertising monopoly when the RTBF – which had hitherto been financed by public funding only – was authorised to broadcast advertising. Despite this reform the RTBF was in serious financial difficulties. Advertising revenue was not an enormous source of income in a community where almost half of the television viewers spent their time watching foreign – mainly French - cable channels.
The Flemish-speaking community: On December 28th 1979 the BRTN, the public radio and television broadcasting body, was granted a statute along the lines of Dutch public broadcasting. The main feature of this statute was that half of all airtime should be allocated to cultural or social associations. Unlike the RTBF, the BRT had never had to compete with Tele-Luxembourg and its monopoly was to last until 1989 – when VTM, the first private television channel, was set up.

Austria: The 1966 law on broadcasting was adopted following a referendum. It set up the ORF, a public corporation which was responsible for radio broadcasting and two television channels. The ORF’s monopoly was extended to cable by a constitutional law in 1974.
Most households in Austria had access to German television channels, and it would take legal measures to open the broadcasting sector up to competition. A legal judgement was handed down on November 24th 1993, which declared that the ORF’s monopoly was in violation of the right to freedom of expression as defined in Clause 10 of the European Convention on Human Rights. Private radio stations were therefore authorised, with effect from January 1st 1994. As far as the television broadcasting sector was concerned, no action was taken on this judgement until 1999 – when the first commercial television channel in Austria was created. It should be pointed out that German cable and satellite channels, which were received by about 60 per cent of Austrian households, had always been a source of strong competition. The high viewing share that they had enjoyed meant that German advertisers had been able to gain a strong foothold in the Austrian market.

Ireland: RTE, the public broadcasting corporation, was established in 1961. Ireland’s public broadcasting service, however, faced strong competition from British television channels – so there was not a lot of room for the commercial channel which was authorised by the Irish Parliament in 1988.
In 1995, a Green Paper on broadcasting was published. It recommended the following: the creation of a Gaelic channel; the establishment of a regulating authority for the public and private broadcasting sectors; the separation, in the public sector, of radio and television broadcasting – which should receive public funding to the tune of 50 per cent.

Portugal: A limited liability company, Radio-Televisao Portuguesa (RTP) was set up in 1956, with the responsibility of overseeing broadcasting in Portugal. Its monopoly was institutionalised in the Portuguese Constitution when RTP was nationalised after the revolution in April 1974.
A law which was passed on September 7th 1990 put an end to RTP’s broadcasting monopoly by setting up two commercial television channels. On February 22nd 1992 the Cabinet allocated these channels to SIC and TVI. The Government had satisfied political requirements, but had not taken into account the real potential of the advertising market: it was unlikely that a country with a population of only 9.8 million would be able to finance four national television channels. In fact, the RTP – whose main source of funding was advertising revenue – soon found itself in serious financial difficulties, as did the private television sector. SIC was more successful than TVI, which was relaunched by “Real TV” in 2001 after its shareholding structure had undergone considerable changes.

(1). - Public service broadcasting was provided via nine regional public broadcasting departments. This division was based on the authorisations which had been issued by the occupying forces. In 1950 these departments set up the ARD, a working community for the regulation of mutual technical, legal and commercial issues and for contributing to ARD1, their common broadcasting programme. In 1961, the States approved the creation of a second public channel, ZDF. This channel broadcast from Mainz throughout the Federal Republic of Germany.

(2). - Although any broadcasting authorisation issued by any State was valid for the whole of the Federal Republic of Germany, all broadcasting companies had to apply to the individual States where they intended broadcasting for a position on cable or the allocation of a terrestrial frequency. If they wished to extend their coverage, it was their responsibility to apply to different States for the relevant licences.

(3). - At the end of 1997, twenty-one private television stations with partial national coverage and forty-five local or regional private television stations were authorised in Germany. This was due to the freeing of terrestrial frequencies, the expansion of the cable network and the development of satellite broadcasting .

(4). - Public broadcasting in Germany was shared between ten State public broadcasting institutions, which together formed the ARD. The public television service provided national programming and eight regional programmes, as well as the ZDF, which broadcast national television programming from Mainz: ARTE, a national French-German channel; 3-SAT, a satellite channel; Phoenix and KinderKanal, two free access specialist channels.

(5). - ARD1 provided a uniform image of Germany as a whole, while reflecting the political pluralism in the country. The ARD 3 channels provided contrasting views of the country.