- BVerfGE 83, 238 1 BvF 1/85, 1/88 6. Rundfunkurteil North Rhine-Westphalia Broadcasting Case
- 05 February 1991
- Herzog, Seidl, Grimm, Söllner, Dieterich, Kühling, Seibert.
- © Nomos Verlagsgesellschaft
1. a) The Basic Law's Art. 5(1), second sentence, obligates the state to guarantee the basic service for which public broadcasting is responsible in a dual broadcasting order.
b) The limits of the resulting maintenance and development guarantee for public broadcasting arise from the function that such broadcasting must fulfill in the context of the communication process, which the Basic Law's Art. 5(1) protects.
c) The maintenance and development guarantee for public broadcasting also encompasses new services through new technologies that in the future can take on certain of broadcasting's traditional functions.
2. a) In a dual broadcasting order, the legislature is not constitutionally required to maintain strict separation between public and private broadcasters. No obligation of "model consistency" arises from the Basic Law.
b) To the extent that the legislature makes possible either cooperation between broadcasters or other forms of joint responsibility for programming, it must ensure that public broadcasting remains in a position from which it can without impairment fulfill its basic service mandate. One particular prerequisite for this is that the programming segments remain distinguishable and attributable to those responsible for them.
c) The legislature itself must decide on a broadcasting model. It may not delegate this decision to the broadcasters to make by agreement. These propositions define the ultimate restriction on statutorily created opportunities for cooperation between public and private broadcasters.
d) Broadcasting freedom protects publication of printed works that have content primarily related to programming if such publication can be allocated to broadcasting's set of tasks as supportive fringe activity.
3. a) In a dual broadcasting order, constitutionally it is permissible, but not mandatory, to set less stringent requirements for private than for public broadcasting regarding the breadth of program offerings and the securing of balanced diversity.
b) Diversity of opinion is a proper criterion for determining whether to authorize applicants to commence private broadcasting. In this context, the legislature may take into account the participation of editorial staff in the configuration of and responsibility for programming. North Rhine-Westphalian Land Broadcasting Act § 7(2), third sentence.
c) The legislature must provide sufficient criteria for apportioning transmission capacities between public and private broadcasting.
4. a) The goals underlying the North Rhine-Westphalian "Two-Column Model" of local broadcasting are constitutionally unobjectionable. The model is in principle well-suited to securing broadcasting freedom in the local realm.
b) With an internally pluralistic organization of private broadcasting, the legislature must determine which societal forces and groups may participate in broadcasting. A statutory catalog of societally relevant groups is constitutionally unobjectionable so long as the selection is proper in the sense that it guarantees balanced diversity.
c) Participation of municipalities in the broadcaster alliances and operating companies of local broadcasting does not violate the mandate of broadcasting's freedom from state control.
5. a) Broadcasting's boards of overseers shall serve to secure diversity of opinion in broadcasting, rather than to represent organized interests or opinions.
b) The legislature has extensive configurative freedom in forming broadcasting's boards of overseers. The Basic Law's Art. 5(1), second sentence, requires merely that the composition of these organs be well-suited to maintaining broadcasting freedom.
Judgment of the First Panel of _5 February 1991 based on the oral hearings held on 30 October 1990 1 BvF 1/85, 1/88
in the proceedings regarding the Petitions of
1. Dr. Alfred Dregger and 235 other Members of the German Bundestag,
seeking a determination under the Basic Law's Art. 93(1), No. 2, that §§ 3(3), (8)-(9) in conjunction with §§ 33(2) and 47; § 3(7); § 15; § 13(1), No. 4; and §§ 27-29 of the Act Concerning "West German Broadcasting of Cologne" of March 19, 1985 (GVBl. NW., p. 237) are incompatible with the Basic Law and void, . . . 1 BvF 1/85 ; and
2. Dr. Alfred Dregger and 214 other Members of the German Bundestag,
seeking a determination under the Basic Law's Art. 93(1), No. 2, that §§ 23-29; §§ 6(2) and 30(1); §§ 11 and 12(3); § 7(2), third sentence; § 52; §§ 26(1), No. 4, and 29(6); and § 3 of the Broadcasting Act for the Land North Rhine-Westphalia of January 19, 1987 (GVBl., p. 22), in the version of the Act to Amend the Act Concerning "West German Broadcasting of Cologne" of December 8, 1987 (GVBl., p. 420), are incompatible with the Basic Law and void, . . . 1 BvF 1/88 .
1. Sections 3(3), (7)-(9); 13(1), No. 4; 15; 27-29; 33(2); and 47 of the Act Concerning "West German Broadcasting of Cologne" (WGB Act) as promulgated on January 11, 1988 (Journal of Statutes and Regulations of the Land North Rhine-Westphalia, p. 27), and §§ 6(2); 7(2), third sentence; 11; 12(3); 23-30; 55 of the Broadcasting Act for the Land North Rhine-Westphalia (Land Broadcasting Act), as promulgated on January 11, 1988 (Journal of Statutes and Regulations of the Land North Rhine-Westphalia, p. 6), arein part only in accordance with this opinioncompatible with the Basic Law.
2. Section 3(1), first sentence, of the Broadcasting Act for the Land North Rhine-Westphalia (Land Broadcasting Act), as promulgated on January 11, 1988 (Journal of Statutes and Regulations of the Land North Rhine-Westphalia, p. 6), is incompatible with the Basic Law's Article 5(1), second sentence, and void.
EXTRACT FROM GROUNDS:
This judicial-review proceeding deals with provisions of North Rhine-Westphalian broadcasting law, specifically the Act Concerning "West German Broadcasting of Cologne" ("WGB Act") of March 19, 1985 [GVBl., p. 137] as promulgated on January 11, 1988 [BVBl. p. 27], and last amended on March 7, 1990 [GVBl., p. 138], and the Broadcasting Act for the Land North Rhine-Westphalia ("Land Broadcasting Act" or "Broadcasting Act") of January 19, 1987 [GVBl., p. 22], as promulgated on January 11, 1988 [GVBl., p. 6], and last amended by statute on March 7, 1990 [GVBl., p. 138]. At issue are the following sets of interrelated statutory regulations that address:
1. the maintenance and development guarantee for the public broadcaster West German Broadcasting of Cologne (WGB Act, §§ 3(3),(7)-(9) in conjunction with §§ 33, 47), including the opportunity to participate in private broadcaster alliances (Broadcasting Act § 6(2));
2. the authorizing and structuring of Land-wide private broadcasting (Broadcasting Act, §§ 3, 7, 11, & 12);
3. the "Two-Column Model" for local broadcasting (Broadcasting Act, §§ 23-30);
4. composition of the broadcasting councils (WGB Act, § 15; Broadcasting Act, § 55 (previously § 52)); and
5. regulation of school broadcasting (WGB Act, §§ 3(1); 13(1), No. 4; 27-29).
1. The Land North Rhine-Westphalia saw a need to regulate broadcasting anew, because since 1954, when the original WGB Act was enacted, the entire media landscape has undergone fundamental changes (Land Government's Bill of Sept. 28, 1984, LTDrucks. 9/3712, p. 34). Such changes were seen in the development of new communications techniques, the authorization of private broadcasting companies in other Laender, and this Court's broadcasting case law.
Among the several goals it pursued in the bill, the Land Government designated as paramount a statutory maintenance and development guarantee for the public broadcaster West German Broadcasting of Cologne ("WGB"), to which, for its future competition with private broadcasting offerors, "all development opportunities [should remain] open." Id. at p. 35. All of the Laender have since granted public broadcasting such a guarantee in Paragraph 3 of the Preamble of the Interstate Compact on the Restructuring of Broadcasting of April 1-3, 1987 ("Interstate Broadcasting Compact"). In North Rhine-Westphalia, this guarantee is expressed primarily in: the general authorization clause of the WGB Act's § 3(3); the grant of opportunities for cooperation with other enterprises (WGB Act, §§ 3(8), (9) in conjunction with § 47 and Broadcasting Act, § 6(2)); the authorization to publish magazines describing programming (WGB Act, § 3(7)); and the permission to finance though advertising (WGB Act, § 33(2)).
In particular, the following provisions were affected.
. . .
2. Through the Broadcasting Act of 1987, the legislature wanted to create in North Rhine-Westphalia, too, the statutory basis for a dual broadcasting system. With the system's public sector having been given a legal structure in the WGB Act of 1985, the Broadcasting Act undertook to regulate private broadcasting, as transmitted both Land-wide and locally (see 3., infra, regarding the latter). North Rhine-Westphalia's legislature viewed private broadcasting likewise as an activity that fulfills a public task, and attempted to create appropriate conditions for it.
The legislature presumed that, for factual reasons, in the field of broadcasting an externally pluralistic model along the lines of the press market could not be realized within the foreseeable future. Land Government Bill, LTDrucks. 10/1440, p. 53. For this reason, the legislature chose an internally pluralistic model for private as well as public broadcasters. This model permits broadcaster alliances to be authorized only if no single one of their members wields a dominant influence over programming, and it requires the programming broadcast over every single channel to express by itself the diversity of opinions. The programming requirements are structured accordingly.
In addition, the legislature undertook to increase the private broadcasters' self-interest in diversity of opinion by giving preference, when the number of applicants exceeds the available transmission frequencies, to those from whom greater diversity of opinion can be expected. In the same manner, an impetus is created to offer comprehensive programming, and not merely specialized programming. Further, the legislature undertakes indirectly to foster participation of the broadcasters' journalists in shaping and sharing responsibility for programming ("interior broadcasting freedom"). This is meant to occur in such a way, too, that scope of editorial participation is a decisive factor in the choice among applicants.
. . .
3. In creating a legal structure for local broadcasting, North Rhine-Westphalia's legislature presumed, as it did for Land-wide broadcasting, that in the long run technical and economic realities preclude a broadcasting market similar to that of the press, in which numerous offerors compete with each other. This presumption is based on two considerations: first, the substantial scarcity of frequencies for "low-power" stations suitable for local broadcasting; and, second, the unlikeliness of an expansion of local advertising markets through which local broadcasting could finance itself. Consequently, the legislature chose for local broadcasting an internally pluralistic model that foresees for each city and county as a rule one television channel and one radio channel that engage in broadcasting in which all interested circles must cooperate.
When structuring this model in further detail, the legislature presumed that, because of the limited local advertising market, authorizing local broadcasting would seriously threaten the economic strength of the local press. On the other hand, however, it also presumed that leaving local broadcasting to newspaper publishers would create a danger of concentration of power over opinion, a danger that is more intense now that in most cities and counties only one newspaper is published. Cf. LTDrucks. 10/1440, p. 54. Therefore, the Land Broadcasting Act divides local broadcasting between two independent organizations that may provide local broadcasting service only in cooperation with one another. Economic responsibility is given to an operating company, which is entrusted with business, technical, and financial affairs and in which primarily local newspaper publishers, but also municipalitiesalbeit in a minority positioncan participate. On the journalistic side, the Broadcasting Act foresees a "broadcaster alliance" in the legal form of an non-economic partnership, formed by natural persons, that has broadcasting as its sole purpose. The broadcaster alliance configures programming and is composed primarily of representatives of associations and grass-roots organizations.
The Broadcasting Act to a large extent prescribes the broadcaster alliance's composition. Section 26 names those organizations and institutions that are entitled, but not obligated, to appoint one member of the broadcaster alliance. The bodies that represent local governments likewise are among those entitled to appoint members of the broadcaster alliance; indeed, for reasons of party proportionality they are the only institutions that have the right to appoint two such members. These members are subject to no instructions or mandates of any kind when working in the broadcaster alliance. At least eight of those bodies that have the right to appoint members must have reached agreement with one another in order to establish a broadcaster alliance. Bodies that have such a right but have declined to name a member can still do so within two months following the establishment. Subsequent acceptance of new members requires consent of two-thirds of the establishing members. Those founding members (at least eight and at most fourteen) must then, by a two-thirds majority, elect four additional members from subject areas listed in the statute. Later, further cooptionnot predetermined by the Actof at most four persons is possible. The partnership, therefore, has at least twelve and at most 22 members.
The persons named by organizations that have the right to appoint members and those subsequently coopted form the partnership's assembly of members and elect the chairperson. They decide fundamental questions of program planning, formulate the programming schedule, and determine the length of the broadcasting day. They do not, however, formulate programming themselves; rather, they supervise it and are responsible for it. The journalistic leadership lies with the chief editor, whose hiring is entrusted to the broadcaster alliance and who has a say in the recruitment of journalistic colleagues. The statutorily anchored, relative editorial autonomy is meant to be supported by the requirement, set forth in the Broadcasting Act's § 75(3), that the broadcaster alliance together with the editors enact editorial by-laws.
In the operating company, for which no particular legal form is prescribed, the local press can be represented by controlling up to 75 per cent of the capital and the voting shares; if the local press has several organs, the market share of each is to be the decisive factor. The municipalities or municipal enterprises and organizations likewise are entitled to participate and, indeed, to hold up to 25 per cent of the capital and voting shares. If the municipalities do not take advantage of this opportunity during the establishment phase of the operating company, they cannot intrude later. If the local newspapers and the municipalities exhaust the quotas reserved to them, then no room remains for interested third parties. The legislature believed that usually an operating company would be formed, but if not then the Land Broadcasting Institution can approve alternative solutions.
Both "columns" of this local broadcasting model operate on the basis of a contract, the essential content of which is statutorily prescribed. Serving to link the two columns are: (1) most important, an annual economic and employment plan that the broadcaster alliance drafts and the operating company approves; (2) the broadcaster alliance's obligation to take in advertising only through the operating company; (3) a mutual right to participate in each other's assemblies of members; and (4) the requirement of unanimity in choosing the chief editor.
Diversity of opinion and topics is prescribed for programming, and indeed both with special consideration given to local concerns and autonomous participation, to a specified degree, of local societal groups, which are reimbursed for their costs. Broadcaster alliances can form agreements with each other or third parties, including West German Broadcasting, regarding the generation and transmission of basic programming.
The Broadcasting Act's provisions, all of which except § 31 the petitioners attack, read as follows:
4. The WGB Act of 1985 substantially altered the governing organs of West German Broadcasting. Its prior structure had been considered of questionable constitutionality since the Federal Constitutional Court had handed down its decisions regarding freedom of broadcasting from state interference. Alteration of that structure, therefore, was an essential aim of the 1985 overhaul of the statute. The boards of overseers were to be made more independent from the state and closer to society. In addition, the Broadcasting Council was to gain precedence over the Administrative Council. The composition, recruitment, and powers of both the Broadcasting Council and the Administrative Council were thereby changed substantially.
The institution's highest organ is now the Broadcasting Council. Its powers have expanded substantially. It is the decisional body for all of the institution's fundamental questions and enacts WGB's by-laws. It supervises and determines the structure of programming, drafts the budget, determines the personnel structure, and is entrusted with hiring and firing the managing director and the various deputy directors, and also with staffing other of WGB's organs. The Administrative Council, in contrast, is limited to supervising how the managing director runs the business, with the exception of how programming decisions are made.
The Broadcasting Council, now expanded from 21 to 41 members, is composed of four "benches" of differing strength. Twelve members are elected by North Rhine-Westphalia's legislature; at least seven of these may themselves be legislators. Another seventeen members are appointed directly by societal groups and institutions named in the Act. Nine members are appointed from fields that possess special expertise that is important to broadcasting; these fields are journalism, culture, art, and science. Finally, a "citizens bench" is foreseen, composed of one representative each from among senior citizens, the disabled, and foreign residents. Representatives from these fields and groups, too, are appointed by certain organizations named in the Act. For all groups, women must be adequately accounted for. All members of the Broadcasting Council are to represent the interests of the general public and are not bound by mandates. Two members named by WGB's Personnel Council of can participate in a purely consultative role in meetings of the Broadcasting Council.
Specifically, the WGB Act provides:
. . .
For private broadcastingboth local and Land-widethe Land Broadcasting Act establishes a pluralistically composed decision-making and supervisory board within private broadcasting's oversight institution, which is governed by public law and named the Land Broadcasting Institution. This institution possesses powers both with regard to the authorization of private broadcasters and to supervision of private broadcasting. The Land Broadcasting Institution has two organs, the Broadcasting Commission and the Director; the essential powers lie with the Broadcasting Commission. The Broadcasting Commission resembles in its composition the Broadcasting Council of WGB. The Broadcasting Act states:
. . .
Two-hundred-thirty-six Members of the German Bundestag who belong to the Christian Democratic Union ("CDU"), Christian Social Union ("CSU"), and Free Democratic Party ("FDP") have petitioned the Federal Constitutional Court under the Basic Law's Art. 93(1), No. 2, and the Federal Constitutional Court Act's §§ 13, No. 6, and 76, No. 1, seeking a declaration that portions of the WGB Act are void. Two-hundred-fifteen Bundestag Members who belong to the CDU and CSU have petitioned the Court to declare void provisions of the Land Broadcasting Act. Specifically, these petitions are aimed at the WGB Act's §§ 3(3), (7)-(9); 13(1), No. 4; 15; 27-29; 33(2); and 47; and at the Broadcasting Act's §§ 3; 6(2); 7(2), third sentence; 11; 12(3); 23-30; and 55. The petitioners primarily assert violations of the Basic Law's Art. 3, 5, and 20.
The petitioners support their assertions in essence as follows:
. . .
Arguments have been submitted by: the Federal Minister of the Interior, on behalf of the Federal Government; the Legislature of North Rhine-Westphalia; the Government of Bavaria; the Land Broadcasting Institution; the Working Alliance of Public Broadcasters of the Federal Republic of Germany ("ARD"); the Federal Cable and Satellite Association, now called the Private Broadcasting and Telecommunications Association; the Federal German Newspaper Publishers Association; the German Magazine Publishers Association; and the Rhenish-Westphalian Newspaper Publishers Association. They argued as follows:
. . .
Those provisions of the WGB of Cologne Act ("WGB Act") and the Broadcasting Act for the Land North Rhine-Westphalia ("Land Broadcasting Act" or "Broadcasting Act") to which the petitioners object essentially comply with the Basic Law, although some require a constitutionally conforming interpretation. Only the Broadcasting Act's § 3(1) violates the Basic Law, namely its Art. 5(1), second sentence.
As the Federal Constitutional Court has consistently explained in its decisions, freedom of broadcasting under the Basic Law's Art. 5(1), second sentence, is a "serving freedom." It serves free individual and public formation of opinion, and it does so in a comprehensive sense not restricted to mere reporting or transmission of political opinions. Free formation of opinion occurs in a process of communication. It presupposes, on the one hand, the freedom to express and disseminate opinions and, on the other, the freedom to take notice of expressed opinions, to inform oneself. Even as it guarantees free expression and dissemination of opinion and freedom of information as basic rights, the Basic Law's Art. 5(1) also seeks to protect this communication process constitutionally. Cf. BVerfGE 57, 295 [319 ff.]. In the constitutionally protected process in which formation of opinion occurs, broadcasting plays a role both as "medium and factor." Cf. BVerfGE 12, 205 . In view of its tremendous communicative importance, formation of opinion can truly be free only to the extent that broadcasting for its part freely, comprehensively, and truthfully informs. Among modern mass communication's necessities, therefore, protection of broadcasting's communicative function as a basic right is an essential prerequisite for achieving the normative goal of the Basic Law's Art. 5(1).
A conception of the Basic Law's Art. 5(1), second sentence, that did not extend beyond mere prevention of state influence, leaving broadcasting otherwise to be shaped by other societal forces, would not do justice to broadcasting freedom's serving character. To be sure, the basic right of broadcasting freedom also, and primarily, offers protection from state action. The right also requires, however, a positive legal order which ensures that broadcasting is not abandoned to individual societal groups any more than it is to the state, and that it instead records and passes on the diversity of topics and opinions which play a role in society as a whole. This purpose demands material, organizational, and procedural rules that are oriented toward broadcasting's task and suited to effect that which the Basic Law's Art. 5(1) in its entirety seeks to guarantee. Cf. BVerfGE 57, 195 . How in particular to structure this legal order is for the legislature to determine. The Basic Law does not prescribe any particular model. Nor does it require consistent realization of any model previously chosen. Instead, what matters constitutionally is simply the guaranteeing of free and comprehensive reporting.
If the legislature decides upon a dual broadcasting order, in which public and private providers coexist, then consequently it must make certain that the total offering of all broadcasters results in fulfillment of the constitutional requirements of balanced diversity in reporting. In the dual system it also is not constitutionally permissible to release the private broadcasters from this requirement merely because the public institutions are obligated to evenhandedness. This is because, in view of the evenhandedness that is demanded from the public broadcasters, any narrowing or bias in the private sector would lead necessarily to imbalance in the total broadcast offering, and thus would result in failure to achieve the goal of the Basic Law's Art. 5(1). Cf. BVerfGE 57, 295 .
The legislature may not, however, condition authorization of private broadcasting, which is constitutionally unobjectionable, on qualifications that in large measure hamper or even preclude privately broadcast programming. Cf. BVerfGE 73, 118 . The legislature may in this context also take into account the consequences that financing private broadcasting through advertising has for programming configuration. These consequences make it more difficult for private broadcasting to fulfill the requirements of the Basic Law's Art. 5(1), second sentence, to the same extent as do the public broadcasters, who are funded primarily through television-owner fees. This distinction justifies less stringent demands for private broadcasters than for public broadcasters concerning breadth of program offerings and securing of balanced diversity. Concessions of this sort, however, can be accepted without enduringly jeopardizing the normative goal of the Basic Law's Art. 5(1), second sentence, only so long as and insofar as public broadcasting's undiminished ability to provide the public with the indispensable basic service remains effectively guaranteed. Cf. BVerfGE 73, 118 [157 ff.].
This concept of "basic service" is not a minimum service, either to which public broadcasting is limited or that could be limited without consequences for the demands placed on private broadcasters. Nor does the phrase "basic service" draw the boundary or allocate tasks between public and private broadcasters, as though, for example, one were responsible for informative and educational programming, and the other for entertainment. Rather, two things must be ensured: first, that the public broadcasters offer programs for the entirety of the population that inform comprehensively within the full spectrum of broadcasting's classical task; and, second, thatwithin the framework of this programmingdiversity of opinion is generated in the constitutionally mandated manner. Cf. BVerfGE 74, 297 [325-26].
If the legislature decides upon a dual broadcasting order, thenin view of private broadcasting's still limited reception, programming diversity, and scopethis obligates it to secure basic service for the population by guaranteeing the requisite technical, organizational, human-resource, and financial conditions for public broadcasting. Cf. BVerfGE 73, 118 . This duty to guarantee would be breached if the legislature were to limit public broadcasting to current levels of development in programming, funding, and technology. Instead, under existing conditions, the basic-service mandate can be fulfilled in the dual system only when public broadcasting is guaranteed, not only in its present condition, but also in its future development. Cf. BVerfGE 74, 297 [350-51].
The provisions of the WGB Act regarding the guarantee of maintenance and development for West German Broadcasting of Cologne (§§ 3(3) and 3(7)-(9) in conjunction with §§ 33(2) and 47) are compatible with the Basic Law. When given a restrictive interpretation, the Broadcasting Act's § 6(2) likewise is compatible with the Basic Law.
1. a) The general clause of the WGB Act's § 3(3), first sentence, construed as it must be narrowly, is constitutionally unobjectionable.
We need not decide here whether the legislative power to structure broadcasting freedom also encompasses the right to grant WGB the opportunity to pursue economic activity of all kinds. The Act does not contain such a grant. Rather, it creates the statutory basis for a general maintenance and development guarantee for WGB that is shaped and given concrete form in various other provisions of the Act. Such a guarantee, which has since been proclaimed in the Preamble of the Interstate Broadcasting Compact of April 1-3, 1987, is constitutionally unobjectionable. Indeed, in the dual broadcasting system it is constitutionally required so long as the private providers do not completely fulfill broadcasting's classical mandate, which underlies the Basic Law's Art. 5(1), second sentence. Cf. BVerfGE 73, 118 [155 ff.]. Subject to this condition, which even the petitioners do not dispute, providing basic servicewhich must be understood comprehensivelyfor the population is the public broadcasters' obligation. Hence, the maintenance and development guarantee means nothing less than the securing of those conditions that make possible the provision of basic service for the population.
Given the rapid development of broadcasting, particularly broadcasting technology, a guarantee linked to present conditions would not suffice to ensure fulfillment of the task of providing basic service. Consequently, the guarantee cannot be limited to the traditional technology of terrestrial transmission. If other forms of transmission appear or replace this traditional form, then the guarantee of basic service will encompass their use, too. The same is true for the programming of public broadcasters, which must remain open for new audience interests as well as new forms and content. Dynamic and open both in terms of topics and times, the concept of basic service is bound only to the function that broadcasting must fulfill within the framework of the communication process protected by the Basic Law's Art. 5(1). Therefore, the limits of the maintenance and development guarantee, which is related to basic service, likewise arise only from broadcasting's function. At least to the extent that public broadcasting's task in the dual system supports the statutory maintenance and development guarantee for public broadcasting, that guarantee retains a constitutional foundation.
The contested statutory provisions remain within these boundaries. The WGB Act's general clause in § 3(3), first sentence, decrees that WGB may engage in the activities named there only "in furtherance of its tasks." The maintenance and development guarantee, therefore, is both premised on these tasks and limited by them.
The tasks that WGB must execute are delineated in the statute with sufficient clarity and precision. The concept of tasks set forth in the WGB Act's § 3(3) first refers to the Act's § 3(1), which charges WGB with providing broadcasting in terms of the traditional, formal definition of broadcasting derived from the law governing fee assessment. The content of this mandate is then specified in the WGB Act's §§ 4 and 5(4). Of primary importance here is the Act's § 4(1), first sentence. It contains normative provisions that summarize and characterize the programming mandate and that, therefore, WGB must respect with every measure taken and every decision made.
In accordance with these provisions, WGB produces and transmits broadcasting as a public matter and as both medium for and factor in the process of free formation of opinion. With this formulation, which is derived from the Federal Constitutional Court's case law, the legislature highlighted the special constraints placed on broadcasting as a freedom that serves formation of opinion. This clarifies at a statutory level that every exercise of broadcasting freedom must serve the task of guaranteeing free and comprehensive formation of opinion. It places the exercise of broadcasting freedom in a position of responsibility toward the public. Room remains for a public broadcaster's own interests, even to the extent that such interests are aimed at maintaining the status quo and developing, only when those interests can be justified and appear to be bound as though in trust for the good of the public.
The obligation to pursue the public interest is further expressed in the WGB Act's § 4(1), second sentence, which charges the significant political, ideological, and societal forces and groups in the broadcast area with guaranteeing fulfillment of public broadcasting's tasks. This provision, however, simultaneously ensures that the actual execution of broadcasting's mandate remains in the broadcasting institution's hands and is not transferred to, for example, the societally relevant forces and groups. To the contrary, the rationale for societal control is instead to enable independent broadcasting to execute its tasks responsibly in the interest of free formation of opinion.
This obligation is more concretely defined in the WGB Act's § 4(2). This provision makes paramount WGB's informational task: WGB must provide in its broadcasts a comprehensive overview of international and domestic events in all essential areas of life. Programming is not limited to that, however; rather, in addition to informing it must also serve to educate and entertain. It must offer contributions to culture, art, and advising the public. Finally, in accordance with the WGB Act's § 4(3), WGB shall account for the regional composition and cultural diversity of the broadcast area. It would be incompatible with this for WGB, perhaps with an eye toward increasing revenue or competing with private broadcasters, to pull out of certain sectors of programming or to neglect or favor particular sectors.
This comprehensively structured programming mandate is extended in terms of diversity of content and opinion in the WGB Act's §§ 5(4)-(5). These provisions, likewise based on statements made by the Federal Constitutional Court, are intended to ensure that broadcasting does not distort the opinion-formation process through programming that is biased or that neglects minority interests.
Viewed together, §§ 4 and 5(4)-(5) express the constitutional requirements that public broadcasting must satisfy in terms of basic service in the dual system. These provisions set forth the functional constraints to which WGB is subject in executing the powers granted by the WGB Act's § 3(3). In this manner, the maintenance and development guarantee of the Act's § 3(3) is both linked to the task of providing basic service and legitimized and limited by it. This counteracts the danger to which the petitioners point, namely that WGB, relying on the Act's § 3(3), could change into a quasi-private, massive enterprise that could pursue merely economic goals and thereby undermine the dual broadcasting order.
b) The WGB Act's § 3(3), second sentence, which permits WGB in particular to offer new services using new technology, likewise is constitutionally unobjectionable. Constitutional law can provide no exhaustive definition of broadcasting. Instead, the meaning of broadcasting can evolve in step with factual changes in the social realm that the Basic Law's Art. 5(1), second sentence, protects. If broadcasting freedom is to retain its normative force under conditions of rapid technical change, then one cannot be bound when defining broadcasting only to existing technology. Otherwise, the constitutional guarantee could not extend to areas in which broadcasting's functions likewise were being fulfilled, albeit through new means. Guaranteeing free individual and public formation of opinion, therefore, demands that the protections afforded by the Basic Law's Art. 5(1), second sentence, also extend to the new services foreseen by the WGB Act's § 3(3), second sentence. Cf. BVerfGE 74, 297 [350-51].
Currently, however, the importance of the new services for formation of opinion is relatively small. In addition, there is no indication that in the near future they could occupy a position equivalent to traditional broadcasting. Consequently, for the moment there is no need for a basic service within the realm of the new services. Cf. BVerfGE 74, 297 . The concept of basic service does not, however, thereby lose meaning for the new services. In view of the rapid developments in media technology, one cannot be certain that in the future communications services similar to broadcasting will not usurp the functions of traditional broadcasting listed in the WGB Act's § 3(3), second sentence. In that case, public broadcasting would have to be able to adjust to such a situation. Otherwise, the danger would arise that broadcasting could one day no longer comprehensively fulfill its tasks and thus would fail to fulfill broadcasting's classical mandate.
Of course, it is true also for the WGB Act's § 3(3), second sentence, that WGB may engage in the potential activities listed there only within the framework of the tasks with which it is statutorily charged. The maintenance and development guarantee of the WGB Act's § 3(3) can convey to a public broadcasting institution no powers that stray beyond the borders of this realm of tasks. The legislature, too, has made this sufficiently clear through its reference to the institution's tasks. In particular, every use of new technologies by WGB presupposes that it is precisely through such technologies that WGB promotes broadcasting's function as medium for and factor in the process of formation of opinion.
2. Likewise compatible with the Basic Law are those possibilities for cooperation with third parties that the legislature made available through the WGB Act's §§ 3(8) in conjunction with 47 and 3(9) in conjunction with 47, and also through the Broadcasting Act's § 6(2).
a) The WGB Act's 3(8) addresses the creation and use of broadcasting productions. Because it is a necessary prerequisite for the exercise of broadcasting freedom, production of programming falls within the protective scope of the Basic Law's Art. 5(1), second sentence. This is true, not only for WGB's own productions, but also for productions made on commission, co-productions, and participation in production companies. The protective scope of the Basic Law's Art. 5(1), second sentence, however, also encompasses both additional use of a broadcaster's own productions and the cooperation with and participation in other companies that furthers such use. Additional use is, to be sure, not directly concerned with broadcast reporting within the meaning of the Basic Law's Art. 5(1), second sentence. As one of several forms of financing for public broadcasters, however, alongside other revenue sources, it is one of those basic financial conditions on which depends the ability of broadcasting freedom in fact to be exercised in a manner that fulfills its constitutionally required function. The legislature is required to structure these basic conditions. Cf. BVerfGE 74, 297 [324-35, 342, 347].
The structure that the legislature created through the WGB Act's § 3(8) in conjunction with § 47 satisfies the requirements of the Basic Law's Art. 5(1), second sentence. The provisions are sufficiently clearly and definitely oriented toward fulfillment of public broadcasting's obligatory tasks in the dual system. In this respect, what is important initially is that the WGB Act's § 3(8), second sentence, forbids any production of programming, the sole or even chief goal of which is exploitation for economic gain. Hence, an institution may avail itself of the powers granted in this provision only when to do so helps the institution fulfill its tasks. Under these circumstances, the economic activity cannot become an end in itself, but is instead conditioned on pursuit of broadcasting's mandate.
The obligation to pursue the programming mandate is again specially emphasized by reference to the WGB Act's § 47 regarding WGB's participation in economic enterprises. Section 47 permits such participation only if this is one of WGB's statutory tasks. The petitioners are incorrect when they assert that the WGB Act's § 47(1), first sentence, refers back merely to the potential activities authorized by §§ 3(3), 8, and 9, and thus from the outset cannot generate any limiting effect. To be sure, these powers fall within the realm in which the public broadcasting institutions function. They thereby help make possible fulfillment of the institutional tasks that the Basic Law's Art. 5(1), second sentence, requires and the WGB Act formulates in detail. Nevertheless, this does not alter the fact that these potential activities are not additional, independent tasks alongside those contained in the programming mandate. Consequently, for the WGB Act's § 47(1), first sentence, the programming mandate alone is decisive.
Given this interpretation, the fear is also unfounded that the WGB Act's § 3(8) in conjunction with § 47 permit the emergence of powerful business conglomerates and provides no check to multi-media consortiums and amalgamations. The powers granted to WGB remain thoroughly dedicated to the obligation of ensuring the broadcast of programming that satisfies the requirements of the basic service mandate. This obligation cannot effect a liberation of WGB from the public-law limitations regarding WGB's purpose. Because broadcasting law to this extent leaves no lacunae, the issue regarding a potential remedy through anti-trust law is moot.
b) The WGB Act's § 3(9) addresses WGB's cooperation with or participation in other enterprises to provide and disseminate programming. In contrast to the WGB Act's § 3(8), which is concerned with preparation and use of programming, the authorization in § 3(9) deals directly with the core area of broadcast operations.
The Basic Law does not bar cooperation in this area. The legislature is not faced with the alternative of permitting only public or only private broadcasting. Nor must it, having chosen a dual broadcasting system, strictly separate the two sectors from one another. No obligation arises from the Basic Law for the legislature to provide "model consistency." Nor does the Basic Law provide any requirement of strict separation of broadcasting from the press. The general rule of "journalistic separation of powers" is not a constitutional rule. Cf. BVerfGE 73, 118 . Constitutionally, what matters here, too, is merely that broadcasting is placed in a position from which it can fulfill its function of serving individual and public formation of opinion.
This is not to say that the cooperation made possible by the WGB Act's § 3(9) is constitutionally unproblematic. The entities responsible for a joint programming venture would not differ merely in their organizational, financial, and economic forms. Rather, they also would be obligated to pursue different and even partially contradictory goals. Consequently, one cannot exclude the potential danger that various commitments and duties could be circumvented or weakened by the cooperation. This could, as a result, lead to a broadcasting system that no longer sufficiently complied with the requirements of the Basic Law's Art. 5(1), second sentence. Free formation of opinion, which the Basic Law's Art. 5(1) envisages, depends at the current stage of the dual system's development on public broadcasting's unimpaired fulfillment of its task of providing basic service. Cf. BVerfGE 73, 118 [157 ff.]; 74, 297 [323 ff.]. Therefore, to the extent that the legislature makes possible a cooperation among broadcasting providers or some other joint legal responsibility for programming, it likewise must ensure that public broadcasting's programming mandate is not thereby eclipsed and eventually eviscerated by otherparticularly ideological or commercialorientations.
The legislature of North Rhine-Westphalia, however, has sufficiently addressed this danger. It again referred to the Broadcasting Act's § 3(9), first sentence, in the Act's § 47. In addition, it referred in § 3(9), second sentence, to the Act's § 5. The opportunities for cooperation with other broadcasters and involvement in other broadcasting ventures are thereby placed under a restrictive reservation. WGB may use its statutory powers only when there is some assurance that its programming principles remain unaffected. The only potential underlying framework, as the Broadcasting Act's cross-reference to § 5 makes clear, is WGB's own total programming, which the Act's § 5(4), No. 1, mentions. Therefore, those elements of a joint programming venture for which WGB would be responsible would have to fit into this underlying framework in such a way that WGB's total programming continued to comply fully with the content requirements set forth in § 5.
Compliance with these requirements can be ensured and reviewed, however, only if WGB's collaboration exists in a distinct portion of the joint programming venture that is attributable to WGB. Only in a segment of a joint programming venture that is thus firmly delineated can public broadcasting's mandate and responsibility be maintained and guaranteed. Consequently, such segmentation of the joint programming venture is constitutionally required if WGB avails itself of the opportunity created by the WGB Act's § 3(9). This does not mean, however, that the program segment for which WGB is responsible would by itself have to comply fully with the requirement of balanced diversity set forth in the WGB Act's § 5. It is not a miniature replica of the institution's total programming. Instead, even taking account of elements that may originate from cooperative ventures, the total programming must remain the framework of reference for the programming mandate and programming principles, and it must guarantee diversity in terms of subject and opinion.
Freedom of the press is not affected by the power to cooperate granted in the WGB Act's § 3(9) in conjunction with § 47. We need not determine to what extent the legislature must take account of the press's interests when structuring broadcasting. To the extent that the statute creates legal limitations on programming content, WGB is subject only to these limitations. They of course would have to be respected when conceiving and executing a joint programming venture. Hence, they ultimately affect press enterprises that wish to participate in such a joint programming venture. These enterprises, however, retain the freedom to accept or decline to cooperate with the public broadcasters. Moreover, they also are not subjected to the public-law constraints when they voluntarily enter into some form of cooperation. Infringement of freedom of the press could become an issue under these circumstances only if the press, to preserve its opportunities for journalistic development and its economic basis for continued existence, were forced to cooperate with WGB. At present, however, the press is not subject to such de facto compulsion.
c) Given the requisite restrictive interpretation, the Broadcasting Act's § 6(2) is constitutionally unobjectionable. The Basic Law's Ar. 5(1), second sentence, does not prevent the legislature from providing for mixed forms of public and private broadcasters. Its power to structure broadcasting is not limited to choosing between various broadcasting models. Rather, the legislature can combine models or import individual elements of one model into another, so long as in doing so it respects the requirements of freedom of formation of opinion.
Nothing to the contrary can be gleaned from the Federal Constitutional Court's Fifth Broadcasting Decision (E 74, 297). Cooperation of the sort that the Broadcasting Act's § 6(2) makes possible was not at issue in that case. Instead, the Federal Constitutional Court assured the legislature of Baden-Wuerttemberg that it was permitted to pursue the goal of extensive separation of public and private broadcasting, and that it was not constitutionally required to make broad opportunities for cooperation available to both sectors of the dual system. Cf. BVerfGE 74, 297 . One cannot conclude from this that the oppositethat cooperation between the two would be unconstitutionalis true. Rather, here again the legislature enjoys configurative freedom.
Broadcasting is not abandoned to state control through WGB's involvement in private broadcaster alliances, because WGB itself must be organized to remain free of state control and cannot free itself from this organizational form in a broadcaster alliance. Nor is one-sided societal influence conjured up by such involvement, because WGB has an internally pluralistic structure and cannot relieve itself of this structure by operating jointly with others.
The opportunity for cooperation granted by the Broadcasting Act's § 6(2) also does not subject private broadcasting to conditions that greatly hamper it or even render it impossible. The establishment of a broadcaster alliance with both public and private members requires voluntary agreement of both sides. There is no legal compulsion to reach an accord. Nor is any de facto compulsion discernible. In particular, initiation of broadcasting by a private broadcaster alliance does not depend on involvement of public broadcasters. Rather, under the Broadcasting Act's § 5(1), the private providers, in whose joint venture WGB may participate, must without WGB be economically and organizationally in a position to provide broadcasting that satisfies the accepted basic principles of journalism. Private providers who fulfill the criteria for authorization only through alliance with a public broadcaster and partner clearly are not contemplated.
Once cooperation begins, the Broadcasting Act's § 6(2) charges WGB with a minority role. This bolsters the directive of § 6(1), first sentence, which forbids dominant influence by any member. With regard to participation in private broadcaster alliances, the general rule of the WGB Act's § 47(2), which obligates WGB to secure the requisite influence over business operations when participating in other ventures, is superseded by the special norm of the Broadcasting Act's § 6(2). Given these precautions, the potentially remaining de facto advantage of WGB cannot lead to a stifling of private broadcasting.
By referring in the Broadcasting Act's § 6(2) to the statutory provisions that apply to WGB, the legislature sufficiently countervailed the danger that WGB, by cooperating with private broadcaster alliances, could extricate itself from its obligation to provide basic service. Compliance with public broadcasting's statutory limitations can be maintained and reviewed, however, only when each sector's portions of the programming are separated from each other and attributable to one sector or the other. Consequently, such a separation is constitutionally required, precisely as in the case of the WGB Act's § 3(9), if WGB avails itself of the opportunity set forth in the Broadcasting Act's § 6(2).
The authorization of the Broadcasting Act's § 6(2) does not extend so far, however, that public broadcasting institutions and private broadcaster alliances may agree to transform the dual system into a cooperative system, in which both parties, though distinguishable, provide broadcasting only in the form of joint programming. The decision regarding the basic broadcasting model is essential for realization of the basic right, and the legislature cannot delegate this decision to the broadcasters. Cf. BVerfGE 57, 295 . This proposition forms the outer limit of the cooperation opportunity set forth in the Broadcasting Act's § 6(2).
3. The WGB Act's § 33(2), which permits WGB to fund itself through, among other things, advertising revenue, does not violate the Basic Law.
The constitutional guarantee of broadcasting freedom extends to the financial conditions on which public broadcasting's ability to perform its constitutionally required tasks depends. Cf. BVerfGE 74, 297 [324-25, 342]. The Basic Law's Art. 5(1), second sentence, obligates the legislature to ensure sufficient funding of constitutionally protected programming. Otherwise, broadcasting freedom, which forbids state influence on programming, could be circumvented by financial measures. On the other hand, however, the basic right's protection does not extend to individual types of funding. What is decisive is simply that broadcasting is placed financially in a position to fulfill its constitutional mandate. We need decide here neither precisely how far this funding obligation reaches nor, in particular, whether and to what extent the legislature must ensure funding of programming that forms no part of the basic service. Cf. BVerfGE 74, 297 .
Fundamentally, it is for the legislature to decide politically on a type of funding. The legislature's configurative freedom in this regard ends, as with determination of the basic broadcasting order, where broadcasting's function of serving free individual and public formation of opinion is endangered. The individual types of funding are not, however, free of such dangers. Although funding through fees or budget appropriations creates the potential for political influence over the configuration of programming, funding through advertising grants commercial interests influence over programming. A blend of types of funding, in contrast, is well-suited to relieving one-sided dependencies and strengthening the broadcasters' freedom to configure programming. In any event, therefore, the Basic Law does not erect any barrier to such blended funding.
This also is true if the legislature decides on a dual broadcasting system. In a dual system, the limits of the legislature's configurative freedom with regard to funding broadcasting would not be reached until either public broadcasting were hampered from fulfilling its task of providing basic service or private broadcasting were subjected to conditions that greatly hamper it or even render it impossible.
In the dual system, at least under current conditions, public broadcasting has the task of providing basic service. To require public broadcasting to rely mostly on advertising revenue would be incompatible with this task. This follows from the repercussions that the type of funding has on configuration of programming. From the perspective of businesses that advertise, a broadcaster's programming is primarily the context for advertisements. For such businesses, whether and to what degree broadcast advertising reaches its audience depends on the attractiveness of the programming context. This is measured by number of viewers. A broadcaster dependent on advertising revenues must take account of this number and strongly orient program planning around it. This, however, jeopardizes precisely those requirements for configuration of programming that result from the public broadcasting's task of providing basic service, cf. BVerfGE 73, 118 [155-56], and that underlie the system of funding through fees.
We need not determine here the precise border beyond which funding through advertising would be incompatible with public broadcasting's mandate in the dual system. In any event, the rule established by the WGB Act's § 33(2) has not reached the critical point. Under § 33(2), first sentence, WGB must fund itself chiefly through fees, and only secondarily through the three other sources named in that provision. In its current form, § 33(2) also delineates in its second sentence maximum limits with regard to radio advertising. It refers in this regard to the Interstate Broadcasting Compact, the remaining provisions of which likewise apply to WGB. More detailed provisions concerning modalities of broadcasting advertising have since been set forth, in compliance with the Interstate Broadcasting Compact, in the WGB Act's § 6a.
Finally, under the WGB Act's § 33(2), first sentence, use of advertising sources remains limited by WGB's statutory task. That provision's reference to the institutional tasks specified in the WGB Act's § 3(1) in conjunction with §§ 4 and 5 defines the basic framework within which WGB must operate when garnering advertising revenue. This reemphasizes in particular the functional limitation to which the institution is subject in all its fields of endeavor. This limitation would by itself stand in the way of an economically/entrepreneurially motivated, boundless expansion of broadcasting advertising.
It is not evident that public broadcasting's limited share of overall advertising revenue greatly hampers or even renders impossible private broadcasting. To the contrary, oral argument clarified that private broadcasters already, after a comparatively short time, can either profit or at least expect to profit in the near future. The repercussions, too, that advertising in public broadcasting has had for the press's economic situation do not establish a violation of the Basic Law's Art. 5(1). Cf. BVerfGE 74, 297 . When the public broadcasting institutions' exclusive use of their financial means to fulfill their tasks is guaranteed, the Basic Law demands no further restrictions to protect other media providers.
4. The WGB Act's § 3(7), which permits WGB to publish printed works that have content primarily linked to programming, likewise is compatible with the Basic Law.
To be sure, a public broadcasting institution cannot point to the basic right of freedom of the press as its foundation. Cf. BVerfGE 59, 231 ; 78, 101 [102-03]. Nevertheless, WGB's authority to publish printed works that have content related primarily to programming has a constitutional basis in freedom of broadcasting. This conclusion is not negated just because WGB uses the press medium, rather than the broadcasting medium, when publishing printed works. Of course, demarcation of the various spheres of freedom protected by the Basic Law's Art. 5(1), second sentence, depends on the chosen means of dissemination. This does not mean, however, that use of one particular medium always can fall within only one of the guarantees contained within Art. 5(1), second sentence. Nor does allocation of this medium to a particular element of a basic right exclude once and for all the possibility that another medium could be allocated to the same element of the basic right. The general rule of "journalistic separation of powers," from which, if at all, such an exclusion could be derived, isas previously explainednot a constitutional rule.
Instead, what is decisive when constitutionally evaluating the authority granted by the WGB Act's § 3(7) is whether and to what extent this authority contributes to ensuring WGB's fulfillment of its tasks, which have their basis in the serving function of broadcasting freedom. If, and to the extent that, publication of printed works that have content primarily related to programming can be allocated to this sphere of tasks as a merely supportive fringe activity, then it is covered by freedom of the press.
Such a justification is possible, not only when program guides published by the press either would not at all or would only unsatisfactorily inform the public about public broadcasting's program offerings; rather, one also cannot exclude the possibility that, even before the appearance of such a grave lack of information, a need for information would arise that could be sufficiently accounted for only by an institution's own program guide. To the extent that information appears to be necessary to give the recipient sufficient knowledge of the public institutions' activities and program offerings, those institutions cannot ultimately be prevented from striving for the audience's attention through a suitable display and presentation of the information. Of course, the program guide's configuration at all times must be thoroughly characterized by a relationship to programming. An editorial section unrelated to the institution's total programming, that contained instead either press-like reporting divorced from programming or generally entertaining contributions, would no longer have a constitutional foundation.
Furthermore, the necessity of restricting broadcasters to providing information related to programming prevents the printed works from having an economic goal. If they primarily or even solely served to fund public broadcasting, their publication likewise would no longer be covered by the institution's task of informing, and thus by broadcasting freedom. It is not evident that a public broadcasting program guide that satisfied these requirements could jeopardize the press's vital economic base. Nor are other indications of a potential infringement of freedom of the press apparent. In particular, the press's publishers enjoy no constitutional entitlement to monopolize dissemination of programming information to the exclusion of broadcasters.
In any event, the WGB Act's § 3(7) is constitutionally unobjectionable if, when interpreting it, the requirements described above are taken into account. Initially, the necessity clause of the WGB Act's § 3(7), second half-sentence, demarcates with sufficient clarity the limits of the authority granted to WGB. First, WGB may use this authority only when fulfillment of the statutory programming mandate otherwise would no longer be ensured. Second, the necessity clause clarifies that the specifications and obligations that flesh out the programming mandate also legally bind the content-related configuration of WGB's program guide. The authority to publish such a guide thereby remains embedded in the programming mandate. It presupposes that this guide offers comprehensive and authoritative information regarding WGB's program offerings.
These requirements are not diminished by the WGB Act's § 3(7), second half-sentenceaccording to which the printed matter's content must be "primarily" related to programmingat least if this formulation is interpreted and specified in conformity with the constitution. Thus understood, it does not allow WGB to neglect the requisite relation to programming. It merely permits the offering and presentation, in a sufficiently attractive display, of information that extends beyond programming previews in the narrow sense and concerns program planning, structure, operation, and personnel of the institution, and the bases and fundamental conditions of programming activity.
The requirements that the Land Broadcasting Act, in §§ 11, 12(3), and 7(2), third sentence, creates for the authorization and operation of private broadcasting are compatible with the Basic Law. In contrast, the rules in the Broadcasting Act's § 3 for allocating frequencies violates the Basic Law's Art. 5(1), second sentence.
1. The programming requirements for private broadcasting in the Broadcasting Act's §§ 11 and 12(3) are constitutionally unobjectionable. The Basic Law's Art. 5(1), second sentence, grants a right to broadcasting freedom, but does not authorize holders of that right to use the freedom however they see fit. As a serving freedom, broadcasting freedom is not guaranteed primarily on the broadcasters' behalf, but rather on behalf of free individual and public formation of opinion. Consequently, the legislature is obligated to provide broadcasting with a legal structure that ensures fulfillment of this goal. In terms of legal requirements for programming, this means that total programming must give appropriate expression to both the diversity of topics and the diversity of opinions. This requirement for total programming applies regardless of whether the legislature has decided on a public or a private broadcasting system.
In addition, no contrary proposition can be deduced from the principle of "model consistency," upon which the petitioners rely. The Basic Law provides no model for broadcasting's legal order. Instead, it provides only a goal: liberty of broadcasting. Broadcasting must be able to fulfill its task of serving free individual and public formation of opinion. This task is independent from any model. Any organizational form for broadcasting that sufficiently takes account of this task is compatible with the Basic Law. Choosing a model does not exhaust the legislature's configurative freedom, with concomitant necessity for model consistency. Instead, the legislature may combine models as it sees fit, so long as in doing so it does not lose sight of the goal of the Basic Law's Art. 5(1). Accordingly, the Federal Constitutional Court has left no doubt that internally pluralistic standards may be prescribed even for private broadcasters. Cf. BVerfGE 57, 295 ; 73, 118 .
The goal, however, can be reached in the various systems in various ways. In a dual system, in which public and private broadcasters compete with each other, it appears to be constitutionally justified to place upon private broadcasters requirements regarding breadth of programming and securing of balanced diversity that are less stringent than those placed on public broadcasting, so long as and insofar as it is effectively ensured that public broadcasting in any event can fulfill the broadcasting mandate completely. Even then, however, imbalances are acceptable only if they are not substantial. Cf. BVerfGE 73, 118 [158-59].
Yet these principles do not permit one to conclude that the legislature would have to reduce private broadcasters' requirements for diversity in terms of topics and opinion. In particular, one cannot glean from the Lower Saxony Decision the proposition that private broadcasters may be required only to provide a "basic standard" of balanced diversity. Rather, under that decision, such a basic standard suffices only for continuing supervision, and not for the authorization of private broadcasters. Cf. 73, 118 [159-60]. In view of the mandate of balanced diversity, which applies without restriction to public broadcasting, a relaxation of requirements for private broadcasters can instead eventually upset the total programming's balance, a consequence which under the normative goal of the Basic Law's Art. 5(1) appears to be acceptable only within narrow confines. The justification for, but also limitation on, thus upsetting the balance is found in the principle that the legislature may not place upon private broadcasters requirements that greatly hamper, or even exclude the possibility of, its operation. Cf. BVerfGE 73, 118 . The legislature is free to determine the requirements for private broadcasters, so long as it does not cross this line.
It does not appear that North Rhine-Westphalia's legislature has crossed this line. The programming requirements that it has imposed on private broadcasters admittedly are more stringent than those imposed in certain other federal Länder, but they are not as stringent as those imposed on WGB. The legislature presumes both in the WGB Act's § 4 and the Broadcasting Act's § 11 that broadcasting, regardless of its legal form and of which entities or persons are responsible for it, is a public matter and both medium for and factor in the process of free formation of opinion. WGB Act, § 4(1), first sentence; Broadcasting Act, § 11, first sentence. Linked to this is WGB's task of providing a comprehensive overview of international and domestic events in all areas of life, of serving through its programming to inform, educate, and entertain, and of offering contributions to culture, art, and discussion. WGB Act, § 4(2). In contrast, the private broadcaster alliances merely must, within each category of programming, do three things: (1) contribute to the comprehensiveness of information and to free individual and public formation of opinion; (2) serve education, discussion, and entertainment; and (3) comply with broadcasting's cultural mandate. WGB Act, § 4(3); Broadcasting Act, § 11(3). In addition, WGB shall adequately account for the regional composition and cultural diversity of its reception area, whereas private broadcasters are obligated only in all channels offering comprehensive (as opposed to specialized) programming to portray, among other things, public events in North Rhine-Westphalia. WGB Act, § 4(3); Broadcasting Act, § 11, third sentence.
The same is true for the programming principles set forth in the WGB Act's § 5 and the Broadcasting Act's § 12. WGB must give expression to the diversity of existing opinions and ideological, scientific, and artistic predilections in the greatest possible breadth and completeness, while the corresponding duty for private channels offering comprehensive programming is limited to mirroring the diversity of opinions. WGB Act § 5(4); Broadcasting Act, § 12(3). WGB must ensure that the significant societal forces in the broadcast area are heard from; the WGB Broadcasting Act extends this duty to the significant political, ideological, and societal forces and groups. WGB Act § 5(4), No. 2; Broadcasting Act, § 12(3), second sentence. Both public and private broadcasters are obligated to set aside appropriate time for addressing controversial topics of public importance. WGB Act § 5(4), second sentence; Broadcasting Act, § 12(3), third sentence.
It does not appear that the private broadcasters are thereby saddled with conditions that greatly hamper or even make impossible their operation and dissemination of broadcasting. To be sure, fulfilling the requirements of the Broadcasting Act's §§ 11 and 12(3) demands to a certain degree that the private broadcasters abstain from broadcasting programs that have mass appeal. One cannot exclude the possibility that this will reduce profits, because advertising revenues are dependent on numbers of viewers. The restrictions do not cut so deep, however, that they would threaten to render private broadcasting totally unprofitable. The statute allows the broadcasters extensive freedom to decide how they wish to fulfill the programming prerequisites. It prescribes neither a programming schedule nor programming proportions. Instead, the broadcasters may freely divide their programming, in terms of broadcast times and quantity, between programs that have mass appeal and other programs. The statute, therefore, merely forces the broadcasters of channels offering comprehensive programming to abstain from broadcasting both programming that consists purely of entertainment and biased informational and educational programs. They retain authority, however, to calculate prices and cost in such a manner that the undertaking nevertheless financially supports itself.
2. The Broadcasting Act's § 7(2), third sentence, second half-sentence, which regulates authorization to broadcast, does not violate the Basic Law. It was proper for the legislature to make selection from among several applicants dependent on, among other factors, the degree of editorial participation, or "inner broadcasting freedom."
The Broadcasting Act's § 7 contains the standards that govern the Land Broadcasting Institution's decision regarding authorization to broadcast when the number of applicants who fulfill the prerequisites for such authorization exceeds the available transmission capacities. Under constitutional case law, legal regulation of this issue forms part of the positive broadcasting order that the legislature itself must create. According to the principles developed in the Third Television Decision, access to private broadcasting may be left neither to chance nor to the free interplay of forces, and it also may not be abandoned to the unbridled discretion of the executive branch. The principle of equality may adequately be accounted for through a system that makes possible an allocation of broadcasting times, and if need be even a proportional reduction. If this does not suffice, or if the legislature has chosen a system under which it will grant licenses only one at a time to a single broadcaster for channels offering comprehensive programming, then the legislature must draft principles governing selection that guarantee equal opportunity for all applicants. The likelihood of obtaining such a license must be determined through objectively relevant and individually appropriate criteria. Cf. BVerfGE 57, 295 .
The North Rhine-Westphalian statute satisfies these requirements. This is not so, however, simply because the norm establishes no legal duty for private broadcasters. To be sure, the applicants remain unrestricted legally and can decide autonomously whether and how they wish to allow their editors to participate in configuration of programming. The statute, however, limits the Land Broadcasting Institution's power of decision, and thus is thoroughly suited to determine the behavior of those who offer to provide private broadcasting. Consequently, it must be examined under the standard provided by the Basic Law's Art. 5(1), second sentence.
This constitutional provision, however, has been adequately respected here. The criterion of "inner broadcasting freedom," which is all that the petitioners attack as unconstitutional, is the last stage in a progression. It is not addressed unless a decision could not be reached at any of the preceding stages. In accordance with the principles governing choice formulated by the Federal Constitutional Court, the statute initially aims to effect agreement between the petitioners. Broadcasting Act, § 7(1). Only if such an agreement is not reached, despite assistance from the Land Broadcasting Institution, will the preferential regulation of § 7(2) become applicable. In that provision, the legislature made diversity of opinion the dominant selection criterion: comprehensive programming takes preference over specialized programming, id., first sentence; and, when there are several offerors of comprehensive programming, preference is given to the one from which greater diversity of opinion can be expected, id., second sentence. The statute lists several indications of diversity: the programming schedule; the composition of the broadcaster alliance; and the organizational regulations that serve diversity of opinion. Id., third sentence, first half-sentence. Only in this context will the extent of participation of editors be taken into account. Id., third sentence, second half-sentence.
Diversity of opinion is a relevant criterion of choice under constitutional case law. Broadcasting freedom serves free and comprehensive formation of opinion. This can succeed only if broadcastingas one of the most important sources of information and an essential factor in forming opinion takes into account, with the greatest possible breadth and completeness, the plurality of opinions. If the legislature makes selection from among several applicants for a license depend on the degree of diversity of opinion that can be expected from their programming, it thereby fosters progress toward the normative goal of balanced diversity in private as well as public broadcasting.
The legislature was allowed to view editorial-staff involvement in both configuration of and responsibility for programming as a suitable means for securing compliance with the diversity requirements. Under the legislative concept, the involvement does not serve participation-related or democratization strategies, nor is it intended to secure for a societal group enhanced influence over broadcasting programming. The petitioners fail to grasp this. The legislature permissibly decided upon an internally pluralistic model for private broadcasting, too. Under this legislative concept, in contrast to that chosen for the press, there is no room for ideologically inclined broadcasting. Instead, the broadcaster must in principle permit all existing and substantial ideological inclinations to be heard in its programs. In terms of legally required organization, this prerequisite has a counterpart in the Broadcasting Act's § 6(1), first sentence, which permits authorization only of broadcaster alliances. Within the broadcaster alliances, there must be no dominant influence of one member. Broadcasting Act § 6(1), second sentence. Under the Broadcasting Act's § 5(1), third sentence, the broadcaster alliances must be in a position to provide broadcasting that satisfies recognized journalistic principles. The Act's § 13 ensures that editorial staff members may fulfill their tasks under their own journalistic responsibility, within the framework of their employment contracts and the broadcaster's overall responsibility.
Editorial participation in configuration of, and responsibility for, programming that exceeds this requirement strengthens those professional groups within broadcastingan enterprise characterized by division of laborthat directly fulfill broadcasting's task of serving as both medium for and factor in formation of opinion. Consequently, permitting editorial participation does not grant external influence, but rather an internal say in how to perform the function protected by the Basic Law's Art. 5(1), second sentence. As such, it is granted to the editors, not to further their professional self-fulfillment or the imposition of their subjective views, but to help them fulfill their communicative function.
Given this understanding of the statute, one also cannot object that it has an inherent tendency to expand in scope and thus ultimately more likely endangers than benefits broadcasting freedom. Editorial participation remains bound to the diversity mandate. Consequently, it may not lead to a maximization that endangers broadcasting freedom; instead, it may lead only to an optimization that fosters such freedom. Forms of involvement that do not serve objective broadcasting freedom, but that instead serve only the editors' subjective freedom, could not support a decision of the Land Broadcasting Institution regarding preference, and thus also could not improve an applicant's chance of gaining authorization. For this reason, too, competition among several applicants for a broadcasting license cannot be escalated indefinitely. In an internally pluralistic model of private broadcasting in which the broadcasters lack freedom to configure their programming however they like, making such opportunities for editors to have their say serve as a criterion for selection is likewise appropriate, so long as it serves to ensure diversity and not the editors' self-interest.
Because of its non-compulsory character and the internal limitation on editorial participation, the norm also does not lack the certainty required by the rule of law. To be sure, it leaves the applicant in the dark regarding what level of editorial participation that it must contemplate to improve its chances of gaining authorization. This results, however, from the competitive situation in which the applicant finds itself. The uncertainty is acceptable, because the Broadcasting Act's § 7(2), third sentence, in any event indicates an outer limit beyond which the editorial participation no longer can serve the mandate of balanced diversity.
3. The rules for allocating transmission capacity in the Broadcasting Act's § 3(1), first sentence, are incompatible with the Basic Law. They violate the mandate, derived from the Basic Law's Art. 5(1), second sentence, of broadcasting's freedom from state interference.
In its case law regarding broadcasting, the Federal Constitutional Court has emphasized from the outset that freedom of broadcasting under the Basic Law's Art. 5(1), second sentence, means primarily freedom of reporting from state interference. Cf. BVerfGE 12, 205 [262-63]. This requirement is linked to broadcasting's function as both medium for and factor in formation of opinion. This function must be performed without state influence. On the other hand, the Basic Law's Art. 5(1), second sentence, does not prevent the state from determining the essential conditions for fulfillment of this function. To the contrary, the Basic Law obligates the state to secure broadcasting freedom and structure it in a suitable manner. Cf. BVerfGE 57, 295 . This presupposes, among other things, both rules regarding authorization to broadcast and selection criteria for private applicants. Cf. BVerfGE 57, 295 [326-27]; 73, 118 [153-54]. The legislature, however, can grant the state no influence over selection, content, or configuration of programming. Cf. BVerfGE 73, 118 [182-83]. The statutory solution set forth in the Broadcasting Act's § 3(1), first sentence, does not violate these requirements.
To be sure, no direct influencing is associated with allocating transmission capacities. Rather, the allocation determines the proportions according which the public and private broadcasters share the total programming. Freedom of broadcasting, however, not only protects against direct state influence on programming, but it also bars indirect influences on programming. Cf. BVerfGE 73, 118 . The danger of such influences is not foreclosed by the Broadcasting Act's § 3(1), first sentence. It arises from the continuing scarcity of transmission capacities. The result of this scarcity is that the Land government, when determining allocation, does not have at its disposal a large number of frequencies. Instead, the usual situation is that the allocation concerns a single frequency that will become available. Under these circumstances, however, the Land government does not merely abstractly determine whether use of a frequency or channel will be public or private; rather, it also chooses between both the specific applicants vying for the available opportunity to transmit and their proffered programming. By its nature this routinely means a selection between an additional offering of programming from WGB and a private offering. In this decision, the Land government is bound merely by the Broadcasting Act's § 3(2), which prescribes a minimum allocation for private broadcasters. Otherwise, the government has free rein. This is not sufficient to foreclose effectively the danger of state influence on programming.
The requirement of consent from the Main Committee of the Land legislature cannot overcome these constitutional objections. The principle of freedom of broadcasting from state interference, derived from the Basic Law's Art. 5(1), second sentence, relates not only to the executive but also to the legislative branch. Cf. BVerfGE 73, 118 . The legislature, too, is part of state authority and subject as such to public criticism and control. Because this in turn essentially depends on freedom of the media, the legislature and its subordinate organs may not be granted influence over the broadcasters' programming. Hence, the issue of whether the Broadcasting Act's § 3 also violates the principle of the statute reservation no longer is important.
This does not mean, however, that the Land legislature may not act at all in this field. Instead, a general determination of criteria that satisfied the statute reservation, and under which the specific allocation decision were to be made by the Land government or the Land's broadcasting institution, would not be constitutionally forbidden, but on the contrary would be required.
North Rhine-Westphalia's rules for local broadcasting, contained in the Broadcasting Act's §§ 23-30, are compatible with the Basic Law.
1. As a general rule, constitutionally what is true for Land-wide broadcasting is also true for local broadcasting: Legally, it must be structured so that it is in a position to serve the constitutional goal of free individual and public formation of opinion. This goal demands in the field of local broadcasting, too, balanced diversity of opinion in the broadcast area's total broadcast offering. The legislature must ensure this. Cf. BVerfGE 74, 297 . In fashioning rules, however, it must adequately account for the special characteristics of the local area. One particular such characteristic is the often-encountered monopoly position of the local newspaper publisher. This monopoly position demands special measures to prevent the emergence of dominant, multi-media power over opinion. Cf. BVerfGE 73, 118 . Precisely how the legislature fulfills this task is left to it to decide politically. It enjoys extensive configurative freedom when statutorily giving shape to its fundamental decisions. This freedom reaches its limit only where the statute ignores compelling requirements of the Basic Law's Art. 5(1), second sentence, or is unsuited to secure effectively broadcasting's serving function. In a dual system, moreover, the legislature may not condition private broadcasting on fulfillment of prerequisites that greatly hamper such broadcasting or even make it impossible.
2. North Rhine-Westphalia's "Two-Column Model" is in principle compatible with these requirements.
One cannot conclude from the Federal Constitutional Court's case law that, as the petitioners contend, the Land legislature was required to pattern legal regulation of local broadcasting after § 22 of Baden-Wuerttemberg's Media Act. When the Court in the Baden-Wuerttemberg Decree declared that the solution in that statute's § 22 might, for regional and local broadcasting, be the only feasible way to proceed and thus might become the rule, cf. BVerfGE 74, 297 [328-29], this statement clearly referred to the two ways permitted by Baden-Wuerttemberg's legislature to authorize private, local broadcasting. Media Act, §§ 20(1), 22. It does not at all, however, limit the legislature's configurative freedom to choosing this solution alone.
Furthermore, one cannot conclude from this decree that public and private broadcasters always must compete with each other in the field of local broadcasting. Here, too, the mandate of balanced diversity can be fulfilled in various ways. One such way, at least given scarcity of local frequencies and limited local advertising markets, is to give local broadcasting an internally pluralistic organization. The Basic Law, as stated above, requires no "model consistency." Instead, as we determined above, private ownership and internally pluralistic organization are thoroughly compatible. Cf. BVerfGE 57, 295 .
The goals that underlie the "Two-Column Model" that North Rhine-Westphalia's legislature has chosen are constitutionally unobjectionable. This model serves the three-pronged purpose of linking authorization of private broadcasting in the local realm to diversity and programming requirements that are similar to those applicable to public broadcasting; preventing the danger, which is acute in the local realm, of local newspaper publishers' dominance over opinion; and not endangering the local press's economic base by authorizing local broadcasting that is funded through advertising. The result of this attempt is the allocation of broadcasting to two responsible entities: the broadcaster alliance, which is responsible for journalistic concerns, and the operating company, which is responsible for economic-technical concerns.
North Rhine-Westphalia's "Two-Column Model," which definitively determines who is entitled to broadcast and then gives them with particular functions to fulfill, likewise is suitable in principle to ensure effectively local broadcasting's freedom. On the one hand, it ensures through the composition of the broadcaster alliance that existing diversity of opinion in the broadcast area is given balanced expression in programming. On the other hand, it avoids dominance over opinion by a double-monopoly of the press and broadcasting. Through the composition of the operating company, the model takes account of the local press's interests in maintaining its vital economic base, in that the newspaper publishers have a preferential right of access to the broadcasting operations, control its advertising funding, and share in the profits.
No disproportionate restriction of broadcasting freedom lurks either in the allocation of functions between the broadcaster alliance and the operating company or in the broadcaster alliance's composition. The decision regarding the organizational framework within which broadcasting may occur must be viewed as structuring, rather than restricting, broadcasting freedom. In structuring broadcasting, the legislature enjoys extensive freedom of decision.
With an internally pluralistic organization of broadcasting, the legislature must determine which societal forces or groups of persons may participate in broadcasting. If the legislature creates a catalogue of locally relevant societal forces and groups, then this is constitutionally unobjectionable so long as the choice is proper in the sense of guaranteeing balanced diversity. The Broadcasting Act's § 26 adequately takes account of this in unobjectionable fashion. For one thing, the legislature took account of societally relevant forces in the local realm and complemented them with additional members. These members represent either certain groups within the population that are not organized into associations or certain areas of social expertise, or else they are accepted into the broadcaster alliance based only on their personal competence. We need not decide whether it would have been proper for the legislature, in composing the broadcaster alliance, to bypass the local newspaper publishers, because the Broadcasting Act's § 26(1), No. 12, permits them to name a representative. Neither a further right to appoint representatives nor, indeed, an unrestricted right to influence local broadcasting can be derived from the Basic Law's Art. 5(1), second sentence.
The legislature also was not obligated to grant the operating company greater influence over the content of local broadcasting's programming. Because it establishes broadcasting that journalistically is independent from the press, the allocation of functions between the broadcaster alliance, responsible for journalistic matters, and the operating company, responsible for economic-technical matters, makes sense precisely as a means of preventing both establishment of multi-media dominance over opinion and displacement of the press from limited local advertising markets. This constitutionally unobjectionable purpose would be undercut by enhanced influence of the newspaper publishers over broadcasting programming. To the extent that the operating company's duty of funding gives it a legitimate interest in configuration of programming, the Broadcasting Act's §§ 28-29 sufficiently take account of this interest.
The legislature was not constitutionally obligated to lower local broadcasting's programming requirements. To be sure, in the local realm, basic service of the kind applicable to Land-wide broadcasting is neither necessary nor possible. Cf. BVerfGE 74, 297 . Local broadcasting, however, likewise serves free individual and public formation of opinion. This presupposes programming that presents the greatest possible breadth and diversity of at least the local spectrum of opinion. Cf. id. In a dual broadcasting order, the legislature can reduce these requirements for private broadcasting, so long as and insofar as the public broadcasting institutions can without impairment fulfill broadcasting's mandate. The prerequisites for such a reduction are lacking here, however, because the legislature has not provided for dualism of operation, but rather for an integrated model. It was proper for the legislature to prescribe for programming both portrayal of public events in the broadcasting area and inclusion of significant portions of information, education, discussion, and entertainment. Land Broadcasting Act, § 24(1), second sentence. A reduction in requirements would have to be considered only if otherwise local, private broadcasting would be greatly hampered or even made impossible. No indications of this are apparent, especially because the requirements of the Broadcasting Act's § 24(1), first paragraph, second sentence, second alternative, also can be fulfilled through basic programming obtained from a third party. Broadcasting Act, § 30.
Likewise not violative of the Basic Law's Art. 5(1), second sentence, is the broadcaster alliance's duty, set forth in the Broadcasting Act's § 24(4), to make available a certain portion of broadcasting time for outside contributions of local groups. By creating this opportunity, the legislature wished to grant local groups that cannot name representatives to the broadcaster alliance, namely groups that pursue cultural goals, limited participation in local broadcasting. As a rule, this can increase programming's topical breadth and diversity of opinion. The Broadcasting Act's § 24(5) prevents any imbalance in programming that could arise from this. Otherwise, the statute does not provide for any consideration, when supervising programming balance, of the programs created by groups, which could force the broadcaster alliance to adjust their programming continually. From a journalistic viewpoint, outside contributions currently leave much to be desired, but that does not impair their constitutional permissibility. Given the limited scope of these contributions, the legislature also could presume that such deficiencies do not greatly hamper or even make impossible private broadcasting by the broadcaster alliances. The statute likewise is unobjectionable in terms of equality, because it does not subject private broadcasting to more stringent requirements than apply to public broadcasting; rather, it subjects local broadcasting to different requirements than apply to Land-wide broadcasting. This distinction, however, does not lack a rational foundation, because of the distinctions in closeness to the citizenry.
The legislature did not violate the Basic Law by instructing the operating companies to fund local broadcasting through advertising revenues. A special basic service for the population in the local realm in addition to the Land-wide broadcasting programming is neither unequivocally mandated nor attainable. Cf. BVerfGE 74, 297 . One cannot find in the Basic Law a linkage between programming principles and means of funding such that qualified demands upon programming of the sort listed in the Broadcasting Act's § 24 would necessitate at least partial funding by fees. We need not decide here whether and on what terms the legislature would be allowed to grant private broadcasting fee-generated income.
Finally, it does not appear that the statutory regulation of the relationship of the broadcaster alliance to the operating company subjects private, local broadcasting to conditions that greatly hamper it or even de facto make it impossible. Nevertheless, the petitioners assert that the model is unable to function, and this suffices to place in question the model's constitutionality. By the same token, the Basic Law's Art. 5(1), second sentence, could be violated if the operation of private broadcasting were condemned to being uneconomical solely because of its legal structure, so that those entitled to broadcast could exercise their right only by enduring accompanying losses.
Prior experience with the "Two-Column Model" does not permit the conclusion that it would be unable to function or would, because of its legal structure, create unacceptable economic risks. At the time of oral argument, licenses had been distributed following public notice and request for applicants between June and September 1989 in 21 of 46 total broadcast areas, and broadcasting had commenced in 15 of them. In another ten, broadcaster alliances and operating companies had signed contracts. As their association explained at oral argument, the publishers within the statute's area of applicability also wish to participate in operating companies in the remaining reception areas. A final evaluation is not yet possible given the unprecedented structure and the comparatively brief period of experimentation with the model. Should it become evident over time that local broadcasting cannot function or be maintained economically under the present legal conditions, then the legislature would to that extent be obligated to improve the Broadcasting Act.
3. The municipalities' right under the Broadcasting Act's § 26(1), No. 4, second paragraph, No. 4, second sentence, to name to the broadcaster alliance's assembly of members two persons who are free to vote in accordance with their consciences, and their right under the Broadcasting Act's § 29(6) to hold 25 per cent of an operating company's capital and voting shares, do not violate the principle of broadcasting's freedom from state interference that derives from the Basic Law's Art. 5(1), second sentence.
Broadcasting's freedom from state interference means, first, that the state may not itself become a broadcaster and, second, that it may not gain decisive influence over the programming of the broadcasters, who are independent of the state. Municipalities form part of state authority. Cf. BVerfGE 73, 118 . On the other hand, the Federal Constitutional Court has considered it permissible for representatives of the state to work in limited numbers with the broadcasters' boards of overseers. Cf. BVerfGE 12, 205 .
Measured against this standard, there is nothing unconstitutional about the right, conferred by the Broadcasting Act's § 26(2), No. 2, second sentence, on representative assemblies or the councilsthe legislative bodiesof counties and independent cities, to name representatives to the broadcaster alliance. Under the Broadcasting Act's § 25(1), the broadcaster alliance is the broadcaster of the programming and is solely responsible for it. This does mean, however, that the broadcaster alliance must act alone in journalistically configuring its programming. Instead, the chief editor and editorial staff configure programming. The broadcaster alliance, in contrast, is composed of the partnership's assembly of members, whose tasks under the Broadcasting Act's § 27 include enacting by-laws, hiring and firing editorial staff, drafting economic and personnel plans, deciding fundamental questions regarding programming planning, supervising the fulfillment of the programming mandate, and determining the programming schedule. Hence, these functions of the assembly of members largely resemble those of public broadcasting's broadcasting councils and the Land Broadcasting Institution's Broadcasting Commission. Because of the extensive congruity of tasks, it appears to be justified for private, local broadcasting to treat the quota for the municipalities' participation in the broadcaster alliance exactly like the quota for state participation in the broadcasting councils. The restriction of municipality representation to two members obviates the risk of a decisive influence in the broadcaster alliance.
Local-government participation in the operating companies is even less objectionable in terms of broadcasting's freedom from state influence. The statute excludes the operating company from the process of configuring programming. It can influence programming only through its provision of technical and financial support and its say in choosing the chief editor. Under these circumstances, therefore, the danger appears to be slight that the minority participation of local government will be used to pressure the broadcaster politically. The municipalities' minority participation finds pertinent justification in that it counterbalances the danger of a primarily commercial interest in broadcasting and can appropriately help broadcasting address local concerns effectively.
Nor does the Broadcasting Act's § 29(6) in other respects violate the Basic Law's Art. 5(1), second sentence. If the legislature decides upon an internally pluralistic organization of local broadcasting, then it must determine which societal forces and groups will cooperate in the broadcasting. In doing so, the constitutional requirements regarding composition of the operating companieswhich cannot directly influence programming, but instead can only provide the economic-technical preconditions for broadcastingare less stringent than those that apply to broadcaster alliances. They merely may not endanger broadcasting freedom and must otherwise appear to be appropriate. These criteria neither obligate the legislature to reserve the operating company for the local newspaper publishers alone nor prevent it from granting to local governments the opportunity of membership.
4. The opportunity granted by the Broadcasting Act's § 30(1) to WGB to generate basic programming for local broadcast does not violate the Basic Law's Art. 5(1), second sentence. Through this opportunity, the legislature wanted to make it easier for local broadcasters both to transmit programming that satisfied the demands of the Broadcasting Act's §§ 24(1)-(2) and also thereby to increase such programming's audience acceptance and broaden the financial base supporting it. The same considerations set forth above in connection with the Broadcasting Act's § 6(2) likewise apply regarding WGB's right to offer such basic programming or to participate in broadcasting it.
The provisions regarding composition of the boards of overseers of both WGB and the private broadcasters (WGB Act, § 15; Broadcasting Act, § 55) are compatible with the Basic Law.
1. The requirements that the Basic Law's Art. 5(1), second sentence, places on composition of the boards of overseers are satisfied.
One element of the positive broadcasting order that the Basic Law's Art. 5(1), second sentence, requires the legislature to create is suitable organizational rules which, within the framework of the underlying organizational model, ensure both that broadcasting is not abandoned to one or to several individual societal groups and that within the total broadcast offering the pertinent forces are heard. Cf. BVerfGE 57, 295 . From the outset, the Federal Constitutional Court has presumed in its broadcasting case law that public broadcasting institutions' internal boards of overseers, composed of representatives of societally relevant groups, form one constitutional means of securing broadcasting freedom organizationally. Cf. BVerfGE 12, 205 [261 ff.]. The same is true for the private broadcasters' similarly composed external boards of overseers. Cf. BVerfGE 73, 118 .
The formation, however, of supervisory boards from the societally relevant groups, which are primarily organized into associations, is not intended either to delegate configuration of programming to such groups or to make them the holders of the basic right of broadcasting freedom. But see BVerfGE 31, 314  (Dissenting Opinion). The boards of overseers composed from the larger society are instead agents for the public interest. They are supposed to supervise the boards and persons who play a crucial role in configuration of programming, and also to ensure that: (1) these persons and boards permit all significant political, ideological, and societal forces and groups to be heard appropriately within the total broadcast offering; (2) programming does not one-sidedly serve a party, social group, interest group, religious confession, or ideology; and (3) the reporting appropriately and fairly accounts for the views of the affected persons, social groups, or offices. Cf. BVerfGE 60, 53 [65-66].
Consequently, it is not the task of the boards of overseers to represent or indeed proclaim their organizations' interests, even though most of the boards' members were appointed as representatives of some interest. Instead, the statutory link to interests organized into associations serves only as a means for gaining agents for the public who are independent from the state's organs and who bring with them experiences from various realms of society. The members of the boards of overseers, therefore, are not called upon to orient programming toward the special views and goals of the organizations that appointed them, and thereby to promote those organizations' endeavors. Rather, the pluralistic composition of the boards is meant precisely to combat the danger of biased influencing and ultimately configuration of programming, and to guarantee that programming gives expression to the diversity of views and activities in all realms of life. Cf. id. at .
This function requires both: (1) determining and evaluating, both objectively and in a manner that fundamentally and adequately accounts for existing diversity, the decisive societal forces; and (2) securing effective influence for those organs in which such societal forces are represented. Cf. BVerfGE 57, 295 . Who in particular belongs among the societally relevant forces cannot be discerned from the Basic Law's Art. 5(1), second sentence. Consequently, as a matter of principle it is for the legislature to determine how the boards of overseers shall be formed. It enjoys wide latitude in doing so. This latitude encompasses the power to give specific contours to the criterion of societal relevance; to ascertain which forces shall be considered; to designate which groups shall be ascribed to such forces; and to select from among these groups those that may appoint members to the board and in what percentages. In this process, the normative content of the Basic Law's Art. 5(1), second sentence, requires only that the legislatively determined composition of the boards is well-suited to preserving broadcasting freedom. Within these limits, broadcasting freedom does not further restrict the legislature's decision-making.
The legislature's configurative power, however, does not end only at the outer limit of arbitrariness established by the Basic Law's Art. 3(1), as the Land government asserts. If the legislature employs societally relevant forces to supervise broadcasting, then it accepts the conditions governing interest representation by associations, which it cannot brush aside by obligating the members of the boards of overseers to serve the public interest. The principle chosen for recruiting members and the official duties assigned to those members contain conflicting tendencies. A difficult distinction between roles is demanded from those persons whom their interest-based associations appoint as representatives to the boards of overseers, but who once there must not promote any particular interest. The law can at best favor, yet not guarantee, this distinction.
The statutorily prescribed independence of members of the broadcasting councils and the Broadcasting Committee from a particular mandate and from a duty to vote in accordance with instructions does indeed give a temporarily unassailable position to a member who wishes to decide independently of the represented interest. It cannot, however, prevent the members from voluntarily linking their votes to such interests, let alone from considering overall interests from a partial viewpoint. Because under these circumstances behavior in the broadcasting councils will remain at least partly determined by members' interests, a grossly one-sided composition of boards of overseers is not well-suited to securing diversity of opinion in broadcasting, and thus it also does not fulfill the demands of the Basic Law's Art. 5(1), second sentence. In contrast, over- and under-representation of comparable groups, if these do not amount to gross distortion, are not objectionable in terms of broadcasting freedom.
A further condition of associations' representation of interests is that the interests of the public are not identical to the sum of the interests represented by associations. Rather, there are interests that are impossible or difficult to organize. For this reason, representation by associations is always only an incomplete means of securing the public's interests. If the legislature decides to supervise broadcasting with the help of societally relevant forces, then the Basic Law's Art. 5(1), second sentence, does not thereby force it to overlook less relevant forces or interests that resist organization into associations. To the contrary, it can counteract both the narrowing of diversity that is inherent in representation by associations and the orientation of the boards of overseers along party lines if such boards include as members persons who represent either no interests or interests that are organized yet functionally weak.
The WGB Act's § 15 and the Broadcasting Act's § 55 satisfy these requirements.
North Rhine-Westphalia's legislature has not actualized in pure form the principle of recruiting the Broadcasting Council and Broadcasting Commission from representatives of relevant societal groups. Instead, these groups only fill the largest of four total benches, the "associations bench." Another set of members is elected by the Land's legislature, ("state bench") others come from various cultural fields ("cultural bench"), and still others are meant to represent the weakly organized groups of senior citizens, the disabled, and foreigners ("citizens bench"). The legislature seeks through this principle of intermingling to combat the dangers that lie in representation exclusively of interests that are organized into associations. In the legislative bill, establishment of a special "culture bench" was justified by the proximity to broadcasting's task of the fields taken into account. In contrast to the members of the "associations bench," the members of the "culture bench" enter the Broadcasting Council, not as representatives of their groups or institutions, but as colleagues active in a certain field. Here too, however, it is groups or institutions that have the right to name members.
Failure to account for newspaper publishers and for refugees' and women's associations does not violate the Basic Law's Art. 5(1), second sentence, any more than does assessing the importance of employers and labor. There is no danger that broadcasting thereby will be one-sidedly abandoned to a societal group. Nor does there appear to be a gross distortion of spectrum of interests. This also is true with regard to women's associations. To be sure, the legislature did not take into account these associations. Nevertheless, it did demand that women be appropriately taken into account in the selection or naming of members to the boards of overseers. Under the Basic Law's Art. 5(1), second sentence, one can demand no more. Whether other forms of representation would more effectively realize the legislative goal is not for this Court to decide.
2. The Basic Law's Art. 3 also has not been violated.
When enacting laws regulating broadcasting, of course, the legislature as always is subject to the general principle of equality. This does not narrow the freedom that the Basic Law's Art. 5(1), second sentence, leaves to choose a certain supervisory system. It also does not provide relevant criteria when the legislature decides to have societally relevant groups help with the supervision. Nevertheless, it does require the legislature to evenhandedly apply the criteria it has chosen and not to stray from them without an objective reason to do so. Because composing the broadcasting councils affects the pertinent groups of persons, the applicable rule is that the Basic Law's Art. 3 is violated when one group of addressees of a norm is treated differently than other such addressees although between these two groups there exist no differences of such type and significance that can justify the unequal treatment. Cf. BVerfGE 55, 72 .
Hence, the legislature has broad but not unfettered discretion here. In particular, with the term "societal relevance" it has established a link to an existing set of social facts that it did not itself create. Consequently, there is a strong indication of a violation of equality if in composing broadcasting's boards of overseers the legislature omits a relevant force or a group that obviously is representative of such a force. Of course, one still must address whether a justification for the omission emerges from the nature of broadcasting supervision.
The omission of the newspaper publishers in WGB's Broadcasting Council does not violate the Basic Law's Art. 3(1). To be sure, they are active in the same field as the journalists addressed in the WGB Act's § 15(4). It also is true that they are especially affected by broadcasting activity. They are so affected, however, precisely because of the competitive situation between the press and broadcasting and the involvement of numerous newspaper publishers in private broadcasting enterprises. This distinguishes the newspaper publishers from the groups that the statute takes into account. Consequently, it is not improper from the standpoint of broadcasting freedom to omit them from participation in supervision of WGB's programming.
The omission of the refugees' associations likewise does not constitute a violation of equality. The legislature was allowed to presume that, 45 years after the end of World War Two, the refugees are integrated into the society of the Federal Republic. The refugees today overwhelmingly form no distinct population group identifiable by their material situation; instead, they now distinguish themselves from members of other groups only through their geographical origin and the cultural characteristics associated with it. As a rule the exiling and loss of homeland has for the refugees' second and third generations so faded into the background that there is no lack of objective basis for the distinction drawn by the legislature.
The assessment of the importance of representatives attributed to employers and labor also does not violate the equality principle. We need not determine which board members specifically must be attributed to each side. Even if employers were to a certain extent disadvantaged in terms of numbers, this would not be improper. The subject in relation to which inequalities must be justified here is broadcasting, and not for example work life. This grants the legislature greater configurative freedom. The only unjustifiable thing would be if the legislature accounted for one set of interests yet omitted competing interests.
The members of the "culture bench" cannot simply be considered representatives of labor. That would presume that the fields represented must be attributable to the work force. The "culture bench" is concerned, however, not with representing the societal group of workers, or even workers in cultural fields, but with cultural expertise itself, which admittedly is gained through involving organizations and groups. Inclusion of members of these organizations, however, likewise does not give predominance to workers' interests. Among the nine organizations entitled to appoint members, only four are oriented toward labor unions; one takes the side of employers, and the remainder either are organizations composed of independent professionals or institutions whose purpose is not to represent the interests of workers.
This does not violate the Basic Law's Art. 3(2). We need not decide whether this constitutional provision mandates taking special account of women's interests in broadcasting's boards of control. Even if one could derive such a mandate from Art. 3(2), it would be for the legislature to decide how to fulfill the mandate. Here the legislature accepted women's interests through the WGB Act's § 15(1) and the Broadcasting Act's § 55(1), second sentence, under which women must appropriately be taken into account in the overall composition of the boards. It does not appear that this provision is from the outset unsuited to attainment of the goal pursued
3. There is no indication that the Basic Law's Art. 9 has been violated. The protective scope of the Basic Law's Art. 9(1) is not impinged upon by the composition of broadcasting's boards of overseers. The basic right does not encompass activity in broadcasting's supervisory boards. This is true whether one sees in this basic right only guarantees of free formation of an organization and of free determination of the organization's purpose and organizational form, or, in contrast, one views the basic right additionally as a guarantee of free activity in pursuit of the organization's purpose. From the outset the association's purpose cannot be pursued in these boards, because they, as this Court has repeatedly emphasized since the Second Television Decision, are not concerned with representing interests; instead, the interest groups serve only as a basis for recruiting an organ designed precisely to ensure broadcasting's independence.
The same is true for the Basic Law's Art. 9(3). This special right of association is guaranteed for the purpose of protecting and promoting economic and working conditions. The broadcasting councils, however, do not focus their efforts on such conditions. Instead, their task is to supervise the broadcasters, especially with regard to programming. Even if the organizations formed under the Basic Law's Art. 9(3) also are called upon, their representatives in the broadcasting council still must represent, not the organization's interests, but the interests of the public.
. . .
Judges: Herzog, Seidl, Grimm, Söllner, Dieterich, Kühling, Seibert.
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