Die Weiterverbreitung von Rundfunkprogrammen in Kabelnetzen: Die deutsche Perspektive

Abstract

In Germany, the legal situation about the retransmission of terrestrial broadcast channels in cable networks is developing along the regulation of broadcasting law, telecommunication law and copyright law. According to broadcasting law the competent media authorities are entitled to oblige the cable operators to spread particular programs in the cable networks in order to ensure the diversity of opinion. Corresponding rules implement the constitutional order to forward a varied and balanced program; herewith, the constitutionally protected freedom of information of individuals and the functioning of the democratic order should be guaranteed. Content and scope of this obligation to feed and retransmit must-carry-programs are different in analog and digital cable networks. In analog cable networks with limited technical capacities there is an obligation to feeding and retransmitting of the cable network for all public programs; this may in principle lead to the fact that the total capacity of the network is exploited with such must-carry-programs. There is no comparable far-reaching obligation for digital programs. The cable operator has to transfer a maximum of one-third of the total capacity of the network with must-carry-programs of public service broadcasters. The obligation to pay fees for the retransmission of must-carry-programs is basically subject to the telecommunication law. This obligation applies to the regulation of the network usage. However, the German telecommunication law does not provide an obligation to pay fees for providers of must-carry-programs. Under German broadcasting law an obligation to pay fees for the retransmission of terrestrial broadcast channels does not exist. The regulations which legally require the cable operatorsto feed defined programs of public broadcasting companies in the cable network and to redistribute them there, do not entitle to payment of retransmission fees. With respect to a controversially discussed legal opinion an obligation to pay transmission fees may not be derived from general legal principles, in particular with regard to the protection for the fundamental rights of cable operators or the general antitrust law. The cable operators acquire the right to retransmit must-carry-programs by reaching an appropriate license agreement with the providers of public programs.