- BVerfGE 73, 118 1 BvR 1/84 4. Rundfunkurteil "Fourth Broadcasting Case"
- 04 November 1986
- Dr. Herzog, Dr. Simon, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner, Dr. Henschel.
- © Nomos Verlagsgesellschaft
1. a) In the dual order of broadcasting at present emerging in the majority of German Länder on the basis of the new Media Acts, the essential "basic provision" is a matter for the public corporations whose land-based programmes reach almost the whole population and which are capable of a range of programmes comprehensive in their content. The task thereby set embraces the essential functions of broadcasting for the democratic order and for cultural life in the Federal Republic. It is therein that public broadcasting and its special features find their justification. The tasks it is set in this connection make it necessary to guarantee the technical, organizational, staffing and financial prerequisites for carrying them out.
b) As long and insofar as performance of the tasks mentioned by public broadcasting is effectively ensured, it seems justified not to place the same high requirements as to breadth of programme range and the ensuring of balanced pluralism on private broadcasting as on public broadcasting. The measures the legislator has to take must however be intended and suitable to bring about and guarantee the highest possible extent of balanced plurality in private broadcasting. For supervision by the (external) bodies set up to guarantee pluralism and by the courts, the decisive feature is a basic standard covering the essential preconditions for plurality of opinion: the possibility for all tendencies in opinion, including those of minorities, to secure expression in private broadcasting, and the exclusion of one-sided, largely imbalanced influence of individual producers of programmes on the formation of public opinion, that is, prevention of the emergence of predominant power over opinion. It is the task of the legislature to guarantee the strict application of this basic standard through material, organizational and procedural provisions.
2. In principle, this and the other requirements of broadcasting freedom are met by a conception of the order of private broadcasting financed by advertising which, alongside general minimum requirements, clearly defines the conditions for the required ensuring of plurality and balance in programmes, entrusts the concern for maintaining these and all decisions of importance for the content of programmes to an external body independent of the State and influenced by the decisive social forces and tendencies, and takes effective statutory measures against a concentration of power over opinion.
3. The Lower Saxon Land Broadcasting Act of 23 May 1984 is, in its basic lines, compatible with the Basic Law. However, a number of its provisions are not capable of guaranteeing the freedom of broadcasting in the constitutionally required fashion; these provisions are wholly or in part incompatible with the Basic Law. Additionally, to guarantee broadcasting freedom supplementary statutory provisions are required.
Judgement of the First Panel of 4 November 1986 on the basis of the oral hearings of 3 June 1986 -- 1 BvF 1/84 --
in the proceedings on the petition for verification whether the Lower Saxon Land Broadcasting Act of 23 May 1984 (GVBl. p.147) is compatible with the Basic Law, Petitioner: Dr. Hans-Jochen Vogel, Bundestag Member, and other 200 members of the German Bundestag - Attorney: Professor Dr. Wolfgang Hoffmann-Riem, Kätnerweg 24, Hamburg 65 -.
1. § 3(3), fourth sentence, of the Lower Saxon Land Broadcasting Act of 23 May 1984 (Lower Saxon Gazette p.147) is incompatible with Article 5(1), second sentence, of the Basic Law and is null and void. § 3(3), third sentence, of the Act thereby becomes without object.
2. Also incompatible with Article 5(1), second sentence, of the Basic Law and null are
a) § 3(1) and (3), first sentence, taken together with § 5(4) and § 3(1) in combination with § 6(3), first sentence, of the Lower Saxon Land Broadcasting Act, insofar as the governmental licensing authority is made competent for verification and decision;
b) § 6(3), fourth sentence, of the Lower Saxon Land Broadcasting Act, insofar as the licensing authority is thereby made competent for the allocation of broadcasting times;
c) § 28(2), second sentence, of the Lower Saxon Land Broadcasting Act, insofar as it concerns programmes produced in Lower Saxony.
3. The following are incompatible with Article 5(1), second sentence, of the Basic Law:
a) § 5(2) of the Lower Saxon Land Broadcasting Act, insofar as the arrangements adopted in this provision are confined to full programmes produced in the Land;
b) § 15 of the Lower Saxon Land Broadcasting Act, insofar as it contains no detailed provisions as to the conditions under which balance in programmes licensed in accordance with § 2 is guaranteed in connection with other programmes;
c) § 44(3), first sentence, of the Lower Saxon Land Broadcasting Act, insofar as it does not, for programmes pursuant to Clause 1, establish any obligation for correct, comprehensive and truthful information.
4. § 44(3) of the Lower Saxon Land Broadcasting Act is incompatible with Article 2(1) taken together with Article 1(1) of the Basic Law insofar as it does not provide for any guarantee of the right to counter-presentation in the event of transmissions from outside the Land disseminated in Lower Saxony.
In other respects, § 2, § 3(1), (3) and (4), § 5, § 6, §§ 8-10, § 13, § 15., §§ 23-26, § 27(1), § 28(1)-(4) and (5), first sentence, § 44(1)-(4) and (5), first sentence, and § 46(2) and (3) of the Lower Saxon Land Broadcasting Act - § 6(1), second sentence, Point 3, and § 23 in the constitutionally required interpretation - are compatible with the Basic Law.
The legislator has however, in order to prevent the emergence of predominant power over opinion in broadcasting, to ensure the adopting of supplementary provisions, in accordance with the Grounds.
EXTRACT FROM GROUNDS:
The object of the proceedings is the question of the compatibility of the Lower Saxon Land Broadcasting Act of 23 May 1984 (LRG) with the Basic Law.
1. The production of broadcasts in the Federal Republic of Germany was until recently reserved to public broadcasting corporations. The constitutional framework conditions for the broadcasting system followed largely from the Federal Constitutional Court's judgments of 1961, 1971 and 1981 (BVerfGE 12, 205 - Deutschland-Fernsehen; 31, 314 - turnover tax; 57, 295 - private broadcasting in the Saarland). In these decisions the Court attached importance to the "special position" of broadcasting by comparison with the press, arising out of the scarcity of available frequencies and the extraordinarily high financial prerequisites for the production of broadcasts. This position has not disappeared recently; it has however changed. The following circumstances in particular would seem to characterize it:
a) The technical requirements for the production and dissemination of broadcasting programmes have improved with the development of the "new media" and will continue to do so. In the sphere of land-based frequencies, however, the existing scarcity continues largely unchanged: for television transmissions additional channels can be expected only in the local sphere; for audio broadcasting the UHF range from 100 to 108 MHz is additionally available; of these, however, frequencies over 104 MHz will be utilizable only in a few years time. The number of receivable television and UHF audio programmes can be significantly increased by using broad-band cable networks. While to date ideas were to create a country-wide cable network, the German Bundespost is now aiming at most at broad-area cabling of Federal territory, at a level of provision of at most 80 %. At 31 December 1985 the possibility existed in the Federal Republic for 4.7 million households - some 18 % - to link into a cable network. Rather more than one-third of all households have made use of this. The German Bundespost is concerned to expand the cable network quickly, in order to reach the economic entry-threshold into the media market, taken to lie at around 4.4 million actually connected households. Complete removal of frequency shortage by this means cannot however be expected at present; there will be a number of cable islands and individual area networks that will grow in the course of time. The difficulties of fully laying all channels, extension to existing building or communal antenna installations and utilization of the cable network by older receivers can no doubt in the long run be solved. It is however uncertain to what extent the possibility of linking up to the existing broad-band cable will actually be made use of. Even if it does not remain at the present one-third of households capable of linkage, full connection density cannot be regarded as certain.
Considerable significance further attaches to satellite technology. A growing number of telecommunications satellites makes it possible to bring programmes to the broadcasting receiving centres of cable networks. By contrast, broadcasting satellites perform the same function as land-based broadcasting stations: they broadcast programmes that can be received by anyone. For the Federal Republic, the German TV-Sat is expected to be available as from summer 1987; it will be able to operate four, and with the addition of a planned further satellite five, television channels simultaneously, with the possibility of accommodating 16 audio programmes on one television channel.
The reception area of these programmes cannot be limited to individual Länder; it extends beyond the territory of the Federal Republic. Because of the considerable costs of reception by individual participants, a long period of time can be expected in which only a proportion of households will make use of this possibility of reception.
The result will therefore be that the number of programmes receivable by all recipients in the territory of a Federal Land in both the regional and the local sphere will for a considerable time remain confined to land-based programmes.
b) If, then, the technical preconditions for the production and dissemination of broadcast transmissions have improved or will improve, the same cannot be said of the economic conditions. Particularly in the television sphere, the initial investments and operation, and sizeable costs of disseminating programmes, lead to high costs, while the financing possibilities are essentially confined to advertising income. According to a widespread view, two or at most three private suppliers of full programmes dependent on advertising income can be viable over the whole Federal territory. In the audio sphere, the cost position is certainly more favourable. But here too the question of the possibility of financing through advertising arises. Taken all round, accordingly, the situation remains that at least the dissemination of full television programmes will require extremely high financial expenditure. Viewers for their part will in addition to licence fees have to pay the costs of linkage to a cable network, of installation of cable between transfer point and receiver or use of a cable-capable house distribution unit, and the running costs of cable and programme use, or undertake investments of several thousand DM for direct satellite reception.
c) Finally, by comparison with the existing position there are recent indications of the emergence of a European broadcasting market, if not one extending even beyond Europe. The new media, notably satellite technology, make far-reaching dissemination of programmes possible; the effective range of satellites reaches beyond national boundaries. This will increasingly make reception of television and also audio programmes transmitted from abroad possible in the whole of the Federal Republic, as well as reception of German satellite and cable-disseminated programmes in neighbouring foreign countries. To remove hindrances to such development, which promotes European integration, or to eliminate them is the effort of both the Council of Europe and the Parliament and Commission of the European Communities; decisions of the European Court of Justice go in the same direction (see esp. ECR  p.409 and  p.833). On 29 April this year the Commission brought before the Council of the European Communities a proposal for a directive on the coordination of particular legal and administrative provisions of Member States on the exercise of broadcasting activity (COM  146 final). Legally, these efforts are based on individual provisions in the EEC Treaty and on Article 10 ECHR.
2. In this situation, the majority of German Bundesländer have undertaken a remodelling of their broadcasting provisions. The new Media Acts open up access to broadcasting for private interested parties, endeavouring at the same time to take account of the requirements of the broadcasting freedom guaranteed by Article 5(1), second sentence, Basic Law, as developed in the constitutional case law. This includes notably the performance of the task of ensuring that the plurality of existing opinions finds the broadest and fullest possible expression in broadcasting and that in this way comprehensive information is offered. The provisions serving this end depart from each other in detail. The basic outlines, however, more or less broadly coincide, including notably the formation of supervisory bodies independent of government, in the legal form of an autonomous institution under public law. Setting the new Acts against the traditional broadcasting Acts and Charters, the outline of a dual broadcasting system become visible: it covers the public broadcasting operations which can carry out their existing task and supply the whole population, which consistently follow an "internally pluralistic" model in their organization and programme production and have their activities financed overwhelmingly from fees. Alongside these are private producers organized differently, in the case of which plurality of opinion is in essential features to be guaranteed differently than with internally pluralistic programming, which finance their activities chiefly from the proceeds of advertising and are more subject to the laws of the market than the public corporations.
3. The Lower Saxon Land Broadcasting Act of 23 May 1984 is one of the first of the new Land Media Acts. Its task is according to the explanatory statement to the government bill to create a comprehensive regulatory framework for broadcasting under private auspices, which is to exclude foreseeable errors of development or wildcat growth. Additionally, the substantive, organizational and procedural provisions of the Act are intended to introduce and promote the development from a public broadcasting monopoly to a plurality of information suppliers and supplies. For this the Act provides for a transitional form intended to make possible a continued, ordered development of broadcasting under private auspices gradually from the production of a small number of broadcasting programmes up to a position in which, at length, an external - externally pluralistic - plurality has emerged. If initially only a single programme is produced, then balance in programme range is to be secured within it. If several producers are permitted, then this criterion logically applies to the overall programme, that is, to the sum of all private programmes, including programmes licensed not in Lower Saxony but elsewhere within the territory to which the Basic Law applies, and disseminated in Lower Saxony.
201 German Bundestag members, belonging to the SPD, have petitioned under Article 93(1)(2) Basic Law, §§ 13(6), 76(1) BVerfGG, for a declaration that the Lower Saxon Land Broadcasting Act is null and void. In their view the essential provisions of the Act infringe Article 5(1) Basic Law; the consequence being that the whole Act is unconstitutional.
The application for a review of constitutionality is admissible.
The Lower Saxon Land Broadcasting Act, the formal constitutionality of which as regards the provisions on broadcasting law under verification here is not subject to any objection, is also objectively compatible with the Basic Law in its basic lines. However, a number of its provisions cannot guarantee the freedom of broadcasting in the constitutionally requisite fashion; these provisions are wholly or partially incompatible with the Basic Law. Additionally, to guarantee broadcasting freedom, supplementary statutory provisions are required.
The decisive point for a constitutional assessment is the freedom of broadcasting guaranteed in Article 5(1), second sentence, Basic Law.
1. Broadcasting freedom serves the same objectives as all the guarantees in Article 5(1) Basic Law: the guaranteeing of free individual and public formation of opinion (BVerfGE 57, 295 [319f.]). This comes about in a communication process in which broadcasting performs the task of a "medium" and "factor": it is for it to provide information in the greatest possible breadth and completeness; it gives the individual and the social groups an opportunity for opinion-forming action and is itself involved in the process of opinion formation. This comes about in a comprehensive sense; opinion formation comes about not only in news broadcasts, political commentaries or series on problems of the past, present and future, but also in audio and TV dramas, musical presentations or entertainment broadcasts (BVerfGE 59, 231 [257f.], with further references - freelance broadcasting workers).
This objective calls firstly for the freedom of broadcasting from State control or influence. This can be already achieved by a purely prohibitory formulation. Over and above this, however, a positive order is required which guarantees that the plurality of existing opinions finds expression in broadcasting in the greatest possible breadth and completeness. In order to secure this, substantive, organizational and procedural arrangements are required which are oriented to the objective of broadcasting freedom and accordingly are capable of bringing about what Article 5(1) Basic Law is intended to guarantee. How the legislature is to carry out this task is - within the limits set by the guarantee - a matter for the legislator to decide (BVerfGE 57, 295 [320f.]).
Among the questions the legislature has to regulate is the decision on the basic lines of the broadcasting order. Within the framework of the underlying ordering model, the legislator has to ensure that the total offer of domestic programmes essentially corresponds to the existing plurality of opinion, that broadcasting is not given over to one or a few social groups, and that the forces concerned can achieve expression in the overall programme range. To guarantee this plurality, the legislature may provide for an "internally pluralistic" structure of producers - to which according to the judgment of 28 February 1961 (BVerfGE 12, 205 ) there are no constitutional objections - that is, an organization in which the influence of the forces concerned comes to bear internally, transmitted through organs of the producers concerned. It may, however, also choose other patterns as long as it guarantees through suitable measures that the total range of domestic programming offered also in fact essentially corresponds to the existing plurality of opinion. If in so doing it wishes to bring about and uphold broadcasting freedom through external ("externally pluralistic") plurality, this solution too does not make it possible to dispense with statutory provisions to guarantee freedom.
Additionally, the legislature has to lay down binding guiding principles that guarantee a minimum of balance in content, realism and mutual respect. It must provide for limited State supervision, regulate access to the production of private broadcasts and, to the extent that this cannot be opened up to every applicant, make regulations for selection that offer applicants an equal opportunity (BVerfGE 57, 295 [324ff.]). Whether the financing of private broadcasting also requires statutory arrangements has not yet been decided by the Federal Constitutional Court. It may be left open in the present proceedings too, because the Lower Saxon Land Broadcasting Act has regulated the matter.
2. In assessing the requirements that follow for Länder broadcasting legislation, the modern developments briefly described above (A I 1) in the area of broadcasting ought not to be left out of account. They have importance for interpreting the constitutional guarantee: they are, as the Federal Constitutional Court's case law on the "special position" of broadcasting has already indicated (A I 1 above), part of the practical lived context to which the fundamental right refers and without the inclusion of which an interpretation that develops the normative effect of broadcasting freedom does not seem possible.
In this respect, importance attaches to the technical development that has improved the conditions for producing and disseminating broadcasts though not altering the fact that the number of programmes receivable by all viewers in the territory of a Federal Land or a local area will for a long time remain confined to land-based programmes. Also of importance are the economic conditions for producing and disseminating private broadcast programmes and their effects, in particular the continuing extraordinarily high financial cost of television programmes, which must be met essentially by income from advertising, and a similar, though on the whole more favourable, position for private audio programmes. Finally, also important is the emergence of a European broadcasting market, or one even reaching beyond Europe, and the associated enhanced supply of programmes transmitted from abroad which will in part be directly receivable in the Federal Republic.
These developments must affect interpretation of Article 5(1), second sentence, Basic Law, as far as the task - to be understood, as explained, in the broadest sense - of participation by broadcasting in opinion-formation and the guaranteeing of a balanced plurality of opinion in the totality of the private programmes receivable in the area to which a Land Broadcasting Act applies is concerned.
a) The programmes of private producers cannot manage fully to do justice to the task of comprehensive information.
This is true, firstly, insofar as the programmes are disseminated through the new media: since the number of viewers reachable in this way is well below the number of viewers, which amounts to almost the whole population, who can receive land-based broadcasts, these programmes are only partly able to do the job of a medium and factor of public-opinion formation.
Secondly, as the petitioners also stress, it is to be expected that broadcast programmes from private suppliers will not convey information in the full width of opinions and cultural trends. In the area of television this is already likely because of the small number of providers. Irrespective of this, no broad range of content can be expected from private broadcasting, because the providers are almost exclusively dependent for financing their activities on income from advertising. This can flow more amply only if the private programmes reach adequately high viewing figures. Providers accordingly face the economic necessity of disseminating programmes as attractive as possible to the mass, successful from the viewpoint of maximization of viewer and listener figures, at the lowest possible cost. Transmissions of interest to only a small part of the audience and often - as especially the case with ambitious cultural transmissions - requiring high expenditure will as a rule take second place, if not be entirely absent, although it is only with them that the whole range of comprehensive information can be obtained without which no "opinion-formation" within the meaning of the guarantee of Article 5(1), second sentence, Basic Law can exist.
b) Further, the equilibrium ("balance") in which the multiplicity of existing opinion trends is to be brought to bear within the total programme range of a Land (cf. BVerfGE 57, 295 [323f.]) will because of the developments described increasingly face certain unavoidable fluctuations and perhaps even disruptions.
When "balanced plurality" exists or can be expected is something that cannot be defined exactly, since unambiguous criteria are lacking; it is a target value that can only ever be reached approximately (see also BVerfG, loc.cit., p.324). This must be all the more true when a multiplicity of programmes, namely those transmitted by cable and satellite, can be received by only part of the population, and perhaps in differing combinations.
Moreover, the requirement for balanced plurality can no longer perform its function unrestrictedly. It presupposes that this sort of multiplicity can be brought about by statutory arrangements in Länder. However, directly receivable programmes from other Bundesländer and foreign transmissions receivable directly (via satellite) or via cable under legal obligations, which are increasingly to be expected, are beyond the disposal of the Land legislator. These programmes need not be intended for the Federal Republic; they may, however, with the emergence of a supranational broadcasting market, be designed for reception in several countries, especially since it will be possible to broadcast the same transmission in various languages. They may undermine the existing balance in the area to which a Land Broadcasting Act applies, even in the case of an "internally pluralistic" model, or at any rate disturb it, with the consequence that in the "overall programme", as the aggregate of all the programmes receivable in a Land, full balance is no longer present.
3. The need to take this objective position into account in interpreting Article 5(1), second sentence, Basic Law cannot mean that the legislature would be constitutionally required to allow private broadcasting only under conditions that would very largely hamper the production of private broadcasting programmes, if not even exclude it. This would be against the decision in the Basic Law, emphasized by the Federal Constitutional Court in consistent case law, in favour of the admissibility of private broadcasting, to which as much weight attaches in interpretation as to the developments described. It should also be borne in mind that the constitutionally guaranteed freedom of broadcasting concerns the whole broadcasting system, not just private but also public broadcasting. If those developments are evaluated in this overall context, they do not compel the conclusions drawn by the petitioners. The decisive point is instead that the broadcasting system as a whole is in line with the constitutional requirements within the limits of the possible. This may also be the case in a dual system of broadcasting, as is at present emerging in the majority of German Bundesländer on the basis of the new Media Acts.
In this order, the indispensable "basic provision" is a matter for the public corporations; they are capable of it because their land-based programmes reach almost the whole population and because they are not dependent in the same way as private producers on high viewing figures, and are accordingly capable of providing a comprehensive range of content in programmes. The task posed here covers the essential functions of broadcasting for the democratic order (cf. BVerfGE 35, 202 , with further references - Lebach) and for cultural life in the Federal Republic: with the extension of broadcasting on offer to privately produced and European programmes, it becomes important to guarantee that the classical mandate of broadcasting is met, including, alongside its role in the formation of opinion and political will, plus entertainment and current reporting, also its cultural responsibility. This is true particularly in the light of the developing European broadcasting market, which is increasing in importance. Under the conditions of this sort of market, the territorially related national functions of land-based broadcasting in particular remain. They are in the present state of affairs to be regarded primarily as ones for public corporations. It is in this and in the guaranteeing of basic provision to all that public broadcasting and its special feature, namely financing through licence fees, find their justification; the tasks it is presented with necessitate a guarantee of the technical, organizational, personal and financial conditions for carrying them out.
The performance of these tasks by public broadcasting cannot be left out of account in assessing the legal requirements on private broadcasting producers. Certainly, they cannot justify totally refraining from legal underpinning of broadcasting freedom for private broadcasting and leaving developments up to market forces, by deregulation (BVerfGE 57, 295 ); this is all the more true since no genuine "market" can be expected in the foreseeable future, so that this sort of solution would be incompatible with Article 5(1), second sentence, Basic Law. However, for as long as and insofar as the performance of the tasks mentioned is effectively guaranteed at least by public broadcasting, it seems justified not to place the same high requirements on breadth of programme range and the guaranteeing of balanced plurality in private broadcasting as in public broadcasting. Undoubtedly, the balanced programmes legally required of the public corporations cannot compensate for imbalances in private broadcasting (BVerfG, loc.cit., p.234). However, as long as such imbalances are not severe, they are tolerable on condition that in the programmes of the public corporations the multiplicity of existing currents of opinion can be expressed without curtailment. Balanced plurality of opinion cannot, as shown, be understood as a measurable, exactly definable quantity; in the changed situation of the present and of the foreseeable future - particularly insofar as directly receivable foreign broadcasts are concerned - it is partly outwith the influence of the legal systems of Länder, and thus in any case subject to unavoidable fluctuations or disturbances (2 b above). Given this state of affairs, the point can only be to ensure that the measures the legislature has to take are intended and suitable for securing and guaranteeing as high a degree as possible of balanced plurality in private broadcasting (Cf. BVerfG, loc.cit., p.320).
This guideline gives the legislature and the bodies competent for the licensing and selecting of private producers a sufficiently clear and binding guideline to follow. For the checks by the (external) bodies set up to guarantee plurality and by the courts, however, it does not seem adequately defined, since it says too little about when the actual development corresponds with it in detail and where the boundary is drawn beyond which there is infringement and penalties become necessary. The checks therefore require a more unambiguous criterion concentrated on serious and therefore clearly recognizable and provable shortcomings. This can be given only by a basic standard of balanced plurality. This requires not only the creation of an arithmetical equality of opinion trends, say by legally ordered compensations, nor does it require intervention in the case of individual imbalances of slight importance; however, it continues to cover the essential requirements of plurality of opinion that are to be protected against specific, serious dangers: the possibility for all trends in opinion - including those of minorities - to be given expression in private broadcasting, and the exclusion of one-sided, highly imbalanced influence of individual producers or programmes on the formation of public opinion, namely the prevention of the emergence of dominating power over opinion. If these requirements are not met, then at any rate the boundary of infringement of Article 5(1), second sentence, Basic Law has been crossed. It is the legislature's task to guarantee the strict observance of this basic standard by substantive, organizational and procedural provisions (cf. BVerfGE 57, 295 ). In particular, the legislator must oppose concentration tendencies in good time and as effectively as possible, especially since mistakes here are particularly hard to reverse (BVerG, loc.cit., p.323).
The underlying idea of the Lower Saxon Land Broadcasting Act is that of a transitional model. It seeks a continuous, ordered development of broadcasting under private auspices, graduating from the production of a small number of broadcasting programmes up to the possibility of a situation in which external plurality is lastingly established (cf. A I 3 above).
This model is given legal shape on the one hand in provisions applying to all stages of the development and laying down a binding minimum standard for all programmes produced (§§ 11-14), and on the other in a requirement for balance which, depending on the stage reached, prescribes internal plurality or lets - limited - external plurality suffice (§ 15). Here "internal" plurality is required not only for the content of programmes; § 15 LRG is confined to substantive arrangements. Compliance with them is to be guaranteed organizationally and procedurally through programme supervision by the Land Broadcasting Committee (§ 28 LRG), a task for the Assembly, made up of representatives of socially significant organizations and groups (§ 32(1)(5), § 30 LRG).
This conception is largely in line with those of the other new Land Media Acts. Its basic components, namely the substantive provisions which alongside general minimum requirements describe the requirements on the necessary guarantee of plurality and balance of programmes, and the concern for compliance through an external body, independent of the State and under the influence of the major social forces and tendencies, cannot in principle be objected to on constitutional grounds. The Lower Saxon provisions, in many respects behind those of other Land Media Acts, do not however go far enough in their present shape.
1. § 15 LRG is largely compatible with the Basic Law; in connection with the third sentence, however, there is a lack of a closer regulation of the obligation to internal balance in individual programmes.
a) Where according to the provision, (domestic) private broadcasting programmes produced and disseminated in the area to which the Act applies must as a whole allow the important political, ideological and social forces and groups adequate expression (first sentence), this totality may not unilaterally serve a party or group, interest group, confession or ideology (second sentence), and each permitted programme must individually meet the requirements of the first and second sentences, unless balance is guaranteed in association with the other programmes (third sentence), this does fall into line with the basic constitutional requirement of balanced plurality contained in broadcasting freedom. The legislature merely prescribes that the programmes of private broadcasting producers must meet this requirement. To the extent that § 15 LRG presumes "programmes in their totality" and an assessment of the requirements applying to individual programmes "taken together with other programmes", account has to be taken of the fact that, particularly in the case of transmission of private broadcasting programmes by cable, it is only in limited fashion that one can speak of a totality of programmes that covers the whole territory to which the Act applies; external balance can relate only to the particular transmission system or particular transmission territory of those programmes assumed to balance each other out. With this proviso, constitutional objections to the provision cannot in principle be raised.
By contrast with the petitioners' view, § 15 LRG has described the requirements on private broadcasting programmes with sufficient fullness and definiteness. To be sure, the legislature has not laid down in concrete terms and underpinned the requisite plurality of private programmes in detail according to nature, amount, groups of addressees or areas of topics, so that producers are ultimately free to leave important dimensions of objective and substantive multiplicity out of account. It is also true that they cannot necessarily be expected to provide a broad, pluralist programme range in this sense, considering the economic facts of private broadcasting (see I 2 a above). But the petitioners cannot be followed when they see this as an important element in the unconstitutionality of the Act as a whole. There is no need for a decision here whether the statutory obligation they regard as necessary of putting on transmissions of a particular nature for particular periods of time would be compatible with the Basic Law - for instance, from the viewpoint of programming freedom. At any rate, no such obligation is constitutionally required. Certainly, the guarantee of broadcasting freedom by Article 5(1), second sentence, Basic Law is not only defensive in nature (BVerfGE 57, 295 ). But the "positive order that guarantees that the multiplicity of existing opinions is given expression in broadcasting as broadly and fully as possible" (BVerfG, loc.cit.) need not go beyond what is necessary for this purpose. On the assumption that public broadcasting can perform its basic function described above (I 3) and does in fact perform it, the legislature is not constitutionally bound to adopt detailed or even seamless regulations of the content at issue and guarantee compliance with them through organizational and procedural provisions. It must be sufficient if he creates ground rules in which the essential is expressed. This is the case in § 15 LRG.
b) In one other respect, by contrast, more detailed regulation was constitutionally required: § 15, third sentence, LRG establishes the obligation for internal balance for each individual programme; this however no longer applies where balance is guaranteed in combination with other programmes. When that is the case is a point the law in silent on. How an individual producer is to know with adequate certainty that all or some of the other private programmes receivable by the same range of listeners or viewers create "balance" in relation to his own programme cannot be seen. As the petitioners, too, rightly object, the absence of the "cut-off point" must accordingly lead to considerable uncertainties among producers. Additionally, they are exposed to the danger of penalties from the Land Broadcasting Committee that they cannot foresee, since the legislator has neglected to describe the conditions for intervention adequately clearly. This infringes the constitutional principles of clarity and certainty of law, which have to be taken into account in the provisions implementing broadcasting freedom too, and require arrangements that are unambiguous for all those involved. Other Länder Acts have done this. Thus, according to § 11(2) of the Broadcasting Act for Land Schleswig-Holstein, balance of programmes is taken as attained if alongside programmes of public broadcasting corporations at least four full daily programmes produced within the area to which the Basic Law applies are receivable, that belong to the same type of programme and are disseminated with the same technology, unless the Land corporation establishes that balance of programmes does not exist. Even though here the number of programmes does not provide a sure indication of balance, the formal finding by the Land corporation does establish the necessary clarity and certainty for those concerned. A provision meeting the same object would have been required in the Lower Saxon Land Broadcasting Act too. To this extent, § 15 LRG is accordingly incompatible with Article 5(1), second sentence, Basic Law.
2. As with the other Land Media Acts, the balance prescribed in § 15 LRG is to be guaranteed organizationally and procedurally by external checks, incumbent on the Land Broadcasting Committee (§ 28 LRG). This concept does not infringe the principle that broadcasting should be free from the State. It does not unconstitutionally interfere with producers' broadcasting freedom. Its effectiveness seems - apart from the provision of § 28(2), second sentence, LRG, which is inadequate for its purpose - to be adequately guaranteed. The legislature was obliged to take further-reaching measures only in the case yet to be discussed (III 1 below) of the emergence of a predominant power over opinion.
a) The Lower Saxon Land Broadcasting Act does not subject the programmes of private producers to any supervision by the State. Instead, it assigns control tasks to an organizational unit legally autonomous from the State and independent of it. The Land Broadcasting Committee is a public-law institution having legal capacity. It carries out its activities within statutory bounds, independently and on its own responsibility. Governmental tasks to be carried out on instructions may not be conveyed to it (§ 27(1) LRG). The members of the body competent for the checks, the Assembly (§ 32(1)(5) LRG) must in carrying out their tasks represent the interests of the generality. They are not bound by mandates or instructions (§ 34(1) LRG). The assembly is, accordingly, neither an organ of direct State administration nor subject to government influence on the way it carries out its statutory tasks. In this respect it does not differ from the broadcasting councils for public broadcasting also set up under State law, which are not subject to any constitutional objections from the viewpoint of freedom from the State. The fact that it is not integrated in the producers' organization does not take away from it the character of a body free of the State.
Within the assembly too, which numbers at least 26 members, the State has no essential influence. Admittedly, § 30(1)(1) and (2) LRG count among the socially important organizations and groups the political parties represented in the Landtag, the influence of which can hardly be distinguished from an apparently "State" influence of the majority parties; five members are appointed by the Landtag. If, however, Article 5 Basic Law does not prevent State representatives being granted an appropriate share on bodies of the neutral producers (BVerfGE 12, 205 ), then this circumstance can scarcely raise objections, especially since the number of representatives of majority parties is not likely to be more than three. The Lower Saxon solution to programme control is accordingly compatible with the principle that broadcasting should be free of the State.
b) Nor does the statutory arrangement of control powers and measures to be taken to exercise them lead to unconstitutional interference with the freedom of producers.
The arrangements do not establish any censorship, which is unrestrictedly forbidden, within the meaning of Article 5(1), third sentence, Basic Law. The ban on censorship covers only prior censorship. It includes restrictive measures before the production or dissemination of an intellectual work, in particular any making this dependent on prior examination and authorization by the authorities (BVerfGE 33, 52 [71f.]). There is no suggestion that this is the case in the performance of the Land Broadcasting Committee's tasks.
In other respects, differentiation is called for in assessing the question whether the Land Broadcasting Act admissibly opens up to the Land Broadcasting Committee possibilities of influencing producers or their programmes. The relevant provisions may be organizational provisions that serve the guaranteeing of broadcasting freedom and only that. These can contain no interference with fundamental rights and accordingly require no further constitutional justification. Provisions that restrict broadcasting freedom are by contrast admissible only on the basis of Article 5(2) Basic Law or in cases of a restriction of broadcasting freedom directly by the Constitution (BVerfGE 57, 295 ). This also applies to external control by the Land Broadcasting Committee, which by § 28(1) LRG extends to compliance with the provisions of §§ 11-15, 21 and 26 LRG and with the provisions in the permit that concern the content of programmes.
The group of organizational provisions includes §§ 13 and 15 of the Act: § 13 specifies the task of truthful, realistic and com prehensive information (cf. BVerfG loc.cit.), § 15 the requirement to give expression in broadcasting to the plurality of existing opinions in the fullest breadth and completeness. The extent to which the other provisions named in § 28(1) LRG are to be allocated to this group or the one of limiting provisions requires no further discussion. For on the assumption of their substantive compatibility with the Basic Law, not further to be examined here (B II above), check on compliance with them by an independent organ is constitutionally unexceptionable. The same applies to the content of the licence (§ 7(1) LRG) and to checks on compliance with the provisions of § 21 (particular transmission times) and 26 LRG (advertising).
c) Finally, there are no sustainable objections to the eff ectiveness of control by the Land Broadcasting Committee either.
aa) However, in § 28(2), second sentence, the Land Broadcasting Act provides for a measure inadequate to the purpose. According to this provision, a programme in accordance with § 15, third sentence, may be objected to only where balance by other programmes is not guaranteed. The legislature here wished to create a "burden-of-proof provision in favour of the producer" (LTDrucks. 10/1120, p.39).
The shortcoming of the provision consists less in the - problematic - regulation of the burden of proof than in the consequence the Land Broadcasting Committee has to draw in the event of a lack of balance of programmes as a whole. This cannot result from an individual programme that should then be objected to; it can always only be established by taking a multiplicity of programmes as a basis, and the only consequence of this position can, on the system in § 15, third sentence, LRG, lie in an obligation to the principle of the first phrase in the provision: each programme must be balanced in itself individually. By what right the Land Broadcasting Committee can pick out one or a few producers and perhaps impose on them the inclusion or omission of transmissions with particular trends cannot be seen; for it cannot be shown that it was specifically the programme objected to that was the cause of the lack of balance of programmes as a whole. Measures pursuant to § 28(2), second sentence LRG must necessarily, accordingly, fail in their actual objective, so that the provision - to the extent that it concerns programmes produced within the validity of the Act - is unconstitutional and void. An appropriate solution might by contrast lie in a formal finding by the Land Broadcasting Committee that balance of programmes as a whole did not exist or had ceased to, as provided in, for instance, § 11(2), first sentence, and (3) of the Broadcasting Act for Land Schleswig-Holstein. The consequence would then be that every programme would have to be balanced in itself; for producers, there would be clarity as to their obligations, and for the Land Broadcasting Committee as to the conditions on which it would have to base its checks.
bb) Unobjectionable, by contrast, is the degree of determinacy of the control criteria in § 13 and particularly § 15, third sentence, LRG. Where the petitioners point out that the legislature has neglected to specify these criteria more specifically and that the establishment of infringement is indefensibly hampered thereby and by the only limited obligations on producers to notify and provide information (§§ 17, 28(5) LRG) they cannot be followed. § 13 LRG lays down duties of care that do not require any closer specification. The balance criterion of § 15 (3) LRG, to be sure, is indeed highly indefinite; it cannot however made more specific. It is a guideline and an approximation that sets the competent bodies a task the accomplishment of which cannot be exactly measured in terms of volume and weight. Even if such a criterion may seem only conditionally capable of disclosing or preventing individual infringements of § 15, third sentence, LRG in the course of a check with the necessary clarity, it does nonetheless make possible consideration and decision as to whether balanced plurality within the meaning of the basic standards set forth essentially exists, whether it is exposed to concrete, serious dangers, so that measures to protect broadcasting freedom are required. The duties on producers to disclose and notify are also sufficient for this. The taking here of the functionality of checks as a basis seems all the more justified because in severe cases there will be no lack of indications and protests, so that institutional control should also be supported by control by the public.
cc) By contrast with the petitioners' view, the means of control by the Land Broadcasting Committee are also to be regarded as sufficient. Objection under § 28(2), first sentence, LRG is a typical and effective means of legal supervision, especially since it is underpinned by the extreme recourse of revoking a licence (§ 28(4) LRG). The fact that this may be imposed only in the case of severe violations, while simple infringements of the law are unpunished, does not yet establish the defect of lack of gradation, since it seems a justified expectation that account will be taken of objections by the Land Broadcasting Committee. Should it, however, prove that instructions to cease from simple infringements, say of provisions on advertising, are ignored, it will be incumbent on the legislator to guarantee compliance with such instructions by making subsequent improvements. The fact that a licence may be revoked only after a warning and only in the event of repetition is in accordance with general rule-of-law principles, in particular the principle of proportionality. Moreover, adding to the measures mentioned the Land Broadcasting Committee's presumably most important possibility in practice, namely to start by pressing for programming in accordance with the Act through talks and correspondence with programme suppliers, it cannot be said that programme supervision by the Land Broadcasting Committee must be denied effectiveness from the viewpoint of means.
d) Altogether, accordingly, the measures taken in the Lower Saxon Land Broadcasting Act to guarantee compliance with its provisions, in particular the requirement for balanced plurality, are to be regarded as sufficient. A statutory imposition of "internally pluralistic" organization of private producers was not required for this.
The petitioners, the Hessian Land government and the ARD rightly point in their position papers and opinions submitted to the lower intensity and effectiveness of external control of private broadcasting by the bodies appointed for the purpose by comparison with control by the corresponding organs of the public corporations. This does, not, however, imply the unconstitutionality of the conception that the Lower Saxon legislature has opted for.
The Broadcasting Councils of the public corporations have much further-reaching, albeit indirect, possibilities of influencing programming than the Land Broadcasting Committee under the Lower Saxon Land Broadcasting Act and the corresponding bodies in other Land Media Acts. This is true of powers over staffing decisions, in particular the selection (and re-selection) of the supervisor, as well as of the organizational framing of programming work, for instance the adoption of programme directives, and for the budget powers of the broadcasting councils. Altogether, they have a guiding and where necessary also prohibitory function, not confined to ex post review of broadcasts, even if they may not always exercise these or if this is only slightly visible externally. The external organs of programming control under the new Land Media Acts, by contrast, have only much weaker possibilities of influence. They do not have any positive influence over programming. Their function is confined in principle to repressive programme control which can operate only once the limit of breach of the law has been crossed, whereas possibilities of prior influence are largely absent. One exception is their influence on the licensing of producers, as provided for in § 3(3) and (4) LRG - though in a problematic way (see V 1 b below).
The internally pluralist organization that characterizes the public broadcasting corporations is accordingly, despite the weaknesses inherent in it, more suited to guaranteeing balanced plurality of opinion and thereby meeting the requirements of broadcasting freedom than an organization of broadcasting in which only the substantive legal obligation to plurality of content exists and controls are accordingly through an external institution. The conclusion cannot however be drawn that the constitutionally guaranteed freedom of broadcasting requires a corresponding internally pluralist organization for private producers too. Certainly, this sort of organizational form would, as has been several times decided, be constitutional; but the decisive influence in that event would lie not with the entrepreneur but with the social forces represented on the internally pluralist body. This would take away from this form of production of broadcasting transmissions the basic feature of private, independent creation and decision, and accordingly its real substance. It would not however be proper to make private broadcasting possible only on conditions that would greatly hamper the production of private programmes, if not rule it out (see III 1 c below).
Influence of the "decisive social forces" of the same intensity and effect as within the public broadcasting corporations can therefore not be constitutionally required in the sphere of private broadcasting. The weaker guarantee of balanced plurality can be accepted because and for as long as adequate guarantees are present in public broadcasting.
Plurality of opinion, the securing and upholding of which is a task of broadcasting freedom, is particularly endangered by an emergence of predominant power over opinion. The legislator is therefore constitutionally obliged to take measures capable of acting against such a development. The provisions whereby the Lower Saxon Broadcasting Act seeks to meet this obligation do not fully meet it.
1. Predominant power over opinion may, first, emerge in restriction to the sphere of broadcasting. This may be the case where from the outset only a few suppliers are present, where an original multiplicity of suppliers becomes concentrated down to a few big suppliers by the elimination of smaller ones, where one and the same supplier offers several programmes receivable within the area where a broadcasting Act applies or where a merger of private suppliers comes about. The focus here cannot be solely upon who formally appears as producer. The same effects may arise where a firm legally or economically controls one or more producers or in some other way exercises considerable influence on programme production. Special provisions in this connection are taken by the Lower Saxon Land Broadcasting Act only in § 5(2) and (6), second sentence, LRG.
a) According to § 5(2), first sentence, LRG, producers of full programmes in this type of programme may not produce more than one audio and one television programme each. If an applicant is a dependent or a controlling firm or a group of companies within the meaning of company law, then by Clause 2, third sentence, the full programmes produced by the other undertakings associated with it are by the Lower Saxon Land Broadcasting Act to be attributed to it; if several enterprises work together on the basis of an agreement or in some other way in such a fashion as jointly to be able to exercise controlling influence on an enterprise, then each of them counts as a controlling firm.
This provision seems in principle capable of acting against the emergence of a predominant power over opinion; constitutional objections can however be raised against the restriction to full programmes. As the petitioners rightly assert, the Act allows the same provider to produce, alongside one television and one audio complete programme, an unlimited number of specialized programmes, and additionally programmes produced in other Länder and fed into Lower Saxony by cable. The same is true of the cases in Clause 2, third sentence. In these, renunciation of inclusion of specialized programmes and the other programmes mentioned may even be more likely to lead to the danger of concentration than in those in sentence one: the fact that the producers of such programmes are associated enterprises will be more likely to be the case than the case of concentration in the hands of a direct programme producer. Taking into account the fact that tendencies towards concentration ought to be opposed in good time and as effectively as possible and that failures in this area in particular are hard to reverse (BVerfGE 57, 295 ), then stricter statutory measures would seem required. That these are not hard to find is shown by several of the new Land Media Acts. If, for instance, Article 19(1) of the Baden-Württemberg Land Media Act includes specialized programmes, widely disseminated and locally receivable programmes in the limitation, then this meets the requirement presented. Supplementation of § 5(2) LRG to achieve the same outcome is incumbent on the Lower Saxon legislature too.
b) § 5(6), second sentence, LRG seeks to take account of the danger of concentration through mergers of broadcasting producers. According to it, the licensing authority may require an applicant to show by the procedure of notification to the Federal Anti-Trust Office that merger-control provisions do not oppose the project. This provision is constitutionally unexceptionable. The Land legislature, on the basis of its exclusive competence for broadcasting, remains obliged to take measures to prevent power over opinion in broadcasting arising out of a merger of broadcasting producers from becoming a predominant one.
This task has been largely met by the Land Broadcasting Act. In the case of a merger that ends the balance of programmes, the obligation to internal plurality of programmes enters in (§ 15, third sentence, LRG). If the producer does not comply with this obligation, then the Land Broadcasting Committee has to take the measures of § 28 LRG, running up to the revocation of the licence.
c) In the other cases of the emergence of a predominant power in opinion, not explicitly regulated by the Act, in private broadcasting, things are no different. In them, as in the case of a merger that endangers plurality of opinion, however, the obligation to internal plurality and the means of § 28 LRG do not necessarily suffice for the requisite guarantees. In principle, the statutory measures to secure plurality of opinion must be all the more effective the further removed private broadcasting is from a position of functioning external plurality; this is also in line with the logic of the Lower Saxon transitional model. As long as several suppliers of television or audio broadcasting programmes produced in the Land are competing with each other, the guarantees mentioned are to be considered sufficient. Prevention of a predominant power over opinion further seems guaranteed where in the case of a sole producer, this is an association of providers in which an agreement or the statutes prevents a predominant influence on programmes by one company member. However, in cases where such influence could be exerted by a sole producer, this cannot apply; here further guarantee are required, such as the obligation to constitute a programme consultative council given effective influence on the programme, as, for instance, § 22(2) of the Baden-Württemberg Land Media Act provides. This task has to be taken account of by the Lower Saxon legislator too, through supplementary provisions.
2. The Basic Law does not bar press undertakings from access to broadcasting; the principle that such undertakings should confine themselves to printed media with an eye to a "journalistic division of powers" is not a constitutional principle. Over and above the dangers of predominant influence over public opinion mentioned, accordingly, equal and perhaps greater dangers are to be feared where power over opinion in the broadcasting sphere is combined with that in the press sphere. This is true not only of supra-regional newspapers and magazines; in the sphere of dissemination of regional and local newspapers and magazines too, such dangers may arise, especially since these largely have a monopoly position in their area. Accordingly, the constitutional guarantee of free formation of opinion requires statutory measures also against the arising of a predominant power over opinion through a combination of influences in broadcasting and the press.
a) Here, in the event of a combination of newspaper publishers to produce broadcast programmes, anti-trust law enters in, to which § 5(6), second sentence, LRG refers. Where, by contrast, an enterprise in the printed media expands into the area of electronic media, particularly broadcasting, this is not a case contemplated by anti-trust law in force. Whether the Federal legislator is constitutionally obliged to close this lacuna by supplementing the law against restraints on competition by anti-trust investigations before issuing the licence, as the Monopolies Commission has recommended, is not a matter for decision in the present constitionality proceedings, the object of which is a Land Broadcasting Act. For the Land legislator within the framework of broadcasting legislation, an obligation to take measures can exist only insofar as the emergence of multi-media power over opinion threatens to lead to dangers for the plurality of opinion in broadcasting. The constitutional review of a broadcasting Act has accordingly to be confined to the question whether the Land legislator has met this obligation.
b) The Lower Saxon Land Broadcasting Act meets the requirement mentioned, with the proviso that its regulations, insofar as they affect the Land's area, are in need of supplementation and that § 23 LRG is to be given the constitutionally required broad interpretation.
aa) Apart from the provision of § 5(6), second sentence, LRG, the Act contains no explicit provision regarding media concentration in the Land territory. Yet § 5(2) LRG, which limits the number of programmes a company, or undertaking associated with it within the meaning of §§ 17 f AktG, may put on also works against the emergence of multi-media power over opinion. Similarly, § 15, third sentence, and § 28 LRG also intervene against predominant power over opinion of large publishing houses in broadcasting. These provisions, however, require the supplementation set forth above (1 a and c). Taking into account the fact that along with the programme(s) of a press undertaking at least the programmes, receivable by all, of the public broadcasting corporations exist, and that furthermore in the supra-regional framework no press monopolies have emerged, at any rate to date, so that plurality of opinion continues to exist here in the press sphere too, then the Land legislature cannot be constitutionally required to make any further-reaching provision in relation to broadcasting.
bb) Stricter requirements must be placed on the provisions against the emergence of predominant multi-media power over opinion in the regional and local sphere, because here a number of monopoly positions of newspaper firms have already emerged. § 23 LRG accordingly seeks to act against the danger of a "dual monopoly". Since production of broadcasting programmes intended for this area only is not provided for in the Act (§ 12, first sentence, LRG), the legislator has confined himself to regulating the "supply" of contributions to the local or regional "window" transmissions (§ 12, second and third sentences, LRG): insofar as local or regional transmissions are disseminated in a programme, these may by § 23, first sentence, LRG not be more than half supplied by any one company that publishes periodical publications intended for the territory with a proportion of more than 20 % of the total print run of all periodical publications intended for the territory. The same restriction applies, by § 23, second sentence, LRG to associated companies in the sense of §§ 17f. AktG and to companies working together in such a way on the basis of an agreement or otherwise that they may jointly exert controlling influence over a company, pursuant to the first sentence.
This provision can secure the necessary effectiveness only on a broad interpretation, which accordingly also seems constitutionally required. § 23 LRG must therefore also be applied where a publishing house that is a member of a company producing Land-wide programmes disseminates transmissions for the local or regional window; a dual monopoly can be ruled out only if this provision applies not to undertakings outside the company only. Where the undertaking producing the Land-wide programme itself disseminates the local or regional window transmissions, nothing else can apply. In such a case, there is not "supply" in the narrower sense; but what applies to the "supplier" must apply a fortiori to the producer. On this interpretation, accordingly, § 23 LRG appears capable of acting as a bar to the concentration of power over opinion. The provision is constitutionally unobjectionable.
Also of essential importance for the existence and nature of private broadcasting and for the objects and content of its programmes is the financing of the production of broadcast transmissions. The Lower Saxon Land Broadcasting Act regulates the financing of programmes in a separate section (§§ 24-26). It says that programmes may be financed by the producers' own financial revenues, from payments collected from the audience, from contributions and from advertising (§ 24). Where payments are collected from the audience, their amount, and where appropriate also any connection with advertising, is to be announced before reception of the programme or start of transmission (§ 25, § 26(6)). Exhaustive provisions on advertising are contained in § 26: it is to be clearly separated from the rest of the programme (Clause 1, first sentence), may only be sent in blocks and may only interrupt the programme at a previously stated time where the length of the transmission exceeds one hundred minutes (§ 26(1), second and third sentences). It is confined to 20 per cent of the weekly broadcast volume (Clause 2), is admissible only in the whole area to which the programme is disseminated and must in principle have at least Land-wide reference (Clauses 2 and 5). Sponsored transmissions are advertising where their content serves the sponsor's interests; in these cases the sponsor must be named at the beginning and end of the transmission (Clause 3). According to Clause 4, finally, influence by advertisers on the rest of the programme or by third parties on the transmissions financed by them is not admissible.
1. §§ 24-26 LRG do not infringe the freedom of broadcasting guaranteed in Article 5(1), second sentence, Basic Law.
The forms of financing provided for in § 24 cannot be objected to, nor can the duties of announcement in §§ 25 and 26(6) LRG. Where it is asserted in the ARD's opinion that total financing from advertising opens up the possibility of commercialization that would submerge the opinion-forming function of broadcasting, no such constitutional assessment can be followed: a more or less far-reaching commercialization is necessarily, and not only with total financing by advertising, bound up with the conception underlying the new Land Media Acts. As long as it is the case, as in the Federal Republic, that profitable financing through payments cannot be expected, there is no practical alternative to financing through advertising. This can however be accepted under the condition set forth above that the variety of existing trends of opinion be expressed uncurtailed in the programmes of the public corporations.
No reservations can be seen regarding the individual provisions about advertising: whether interruptive advertising is constitutionally admissible as such need not be decided; the admissibility of single interruptions in the case of transmissions lasting over one hundred minutes (§ 26(1), third sentence, LRG) does not at any rate establish any specific, serious danger to broadcasting freedom, especially since the time of the interruption is to be stated in advance. The limitation on advertising time by § 26(2) LRG is without practical significance, since no private producer is likely to reach a proportion of 20 per cent and the audience would hardly accept a programme so overloaded with advertising; there is accordingly no reason to object to the proportion of 20 per cent. In the case of the "transparency obligation" laid down by Article 26(3) LRG, it may, admittedly, be doubtful when a sponsored transmission "serves the interests of the third party", so that the obligation to state the name arises. Constitutionally, however, this obligation would in any case only be required where it was necessary in order to secure plurality of opinion. No basis for this can be seen at present. Consequently, it cannot, as the petitioners think, matter that Clause 3 covers only "transmissions" but not entire programmes. The bar against influence stated in § 26(4) LRG should take on practical importance at most in cases of severe violations; since compliance is to be monitored by the Land Broadcasting Committee (§ 28(1) LRG), constitutional measures to guarantee it are not lacking either. The fact, finally, that advertising is to cover the whole territory of dissemination and have at least Land-wide reference (Clause 5) is not to be objected to, especially since the measure serves to protect the local and regional press and therefore partly rules out possible repercussions on the press.
The legislator has accordingly not regulated "too little" either. With the provisions of § 15, third sentence, and § 28 LRG he has created a regulation that operates in the case of danger to plurality of opinion from advertising too: should a development of the nature feared by the petitioners and in the opinions arise, the Land Broadcasting Committee would have to intervene, and in the extreme case cause the licence to be revoked. There are, accordingly, organizational and procedural provisions capable of acting against the danger. Should it prove that these are insufficient in order effectively to guarantee the plurality of opinion indispensable in private broadcasting too, it will be incumbent on the legislator to take the necessary measures by way of subsequent improvement.
2. The repercussions on the press of financing private broadcasting through advertising cannot be assessed definitively; in particular, the question whether the press or at least a number of press undertakings will thereby be deprived of sources of finance essential to their existence. Constitutionally, this is of importance, since such a development would affect press freedom, which also guarantees the institution of a "free press", and therefore the existence and functionality of the press (cf. BVerfGE 20, 162 [175f.]; on the reservation as to statutory regulation of this aspect, though leaving the matter open, see BVerfGE 57, 295 ).
This sort of limitation would presuppose that the total volume of advertising will no longer rise notably, that a significant proportion of this volume will be taken away from the press and go to broadcasting and that press undertakings will therefore fall below the threshold of profitability. Whether these conditions will arise is uncertain. For the total volume, this is all the more true because it in turn depends on fluctuations in economic development. As to the question what advertising revenue may move to broadcasting, this will largely depend on the nature and object of the advertising. Thus, the Monopolies Commission has pointed out that notices with "selective effect" ought predominantly to remain with newspapers; there are plausible reasons for thinking that more comprehensive and intensive information is better suited for presentation in newspapers than in the electronic media. By contrast, advertising with mass effect and image advertising may move more strongly than so far to the electronic media. As far as the effects on press firms are concerned, the Monopolies Commission assumes that the existence of the print media as such is not endangered; but the advertising revenue of press companies is likely to fall considerably. In particular, smaller firms without local or regional monopoly positions would be brought into economic difficulties.
Statements going beyond these and similar estimates seem impossible at the present stage, at which advertising in private broadcasting does not yet play any noteworthy role. Given this factual position, § 26 LRG cannot be objected to from viewpoints of press freedom either. Should adequately established findings make measures to secure the functionality of the press necessary, it will become a task of the legislator to take these as subsequent improvements.
Corresponding with the requirements on constitutionally guaranteed broadcasting freedom (BVerfGE 57, 295 [326f.]), the Lower Saxon Land Broadcasting Act provides for a licence to present audio and television programmes (§ 2). It regulates the competences, procedure, and requirements for issue, removal and withdrawal of the licence, and sets up principles for the choice and for the allocation of broadcasting times. Regulations of this nature are constitutionally required (BVerfG, loc.cit.). However, the provisions the Land Broadcasting Act adopts are partly incompatible with the Basic Law.
1. While the other new Land Media Acts convey the decisions to be taken in this connection fully to the "corporations", independent of the State, which are also responsible for supervising programmes, the Lower Saxon Act provides for comprehensive competences for these decisions for the State licensing authority, alongside competences for the Land Broadcasting Committee, following the model of the Rhineland-Palatinate Cable Experiment Act that will cease to be in force on 1 January 1987. To the extent that the Act here allows the licensing authority an evaluation of its own that may have effects on the content of the programme range, this infringes the principle that broadcasting should be free of the State.
a) This principle does not exclude government measures that serve the creation or upholding of broadcasting freedom; these may even be constitutionally required (cf. BVerfG, loc.cit., p.320ff.). By contrast, it bars legislature and executive from any influence on broadcasting incompatible with the task of securing this or not justified by limits to the fundamental right. With this limitation, the principle covers the programming freedom of producers: Article 5(1), second sentence, Basic Law accordingly protects not only against direct influence on the selection, content and form of programmes but also against influence that might affect programming freedom indirectly (cf. BVerfGE 59, 231 ).
If, as in the Lower Saxon Land Broadcasting Act, the decision on access, selection and removal and withdrawal of the licence or decisive involvement in these decisions is conveyed to a government authority, then effective protection of the programming freedom of private broadcasters is guaranteed here only given strict requirements: the State authority may not be given any room for action and evaluation that makes it possible for it to secure non-technical influence, particularly considerations that limit the plurality of opinion, on the decision as to access by private interested parties to broadcasting. This is all the more so because such discretion in evaluation may have effects not only on the actual decision but even prior to it, as a means of pressure or even by way of "self-censorship", on interested parties or producers. In the case of decisions important for the content of programmes, accordingly, the State authority must in principle be allowed neither unbounded nor bounded discretion. Equally unconstitutional are provisions that allow the authorities, for instance by using indefinite legal concepts, areas of freedom of judgement that require evaluation of programme content, or compliance with which involves at least indirect effects on programme content.
b) According to these principles, it cannot simply be objected that the Land Broadcasting Act conveys the issuing of the licence to a State authority (§ 3(1)) even though no material necessity for this departure from all other Land Media Acts can be seen. Equally unexceptionable are the provisions on removal or withdrawal of the licence and on the production of broadcast transmissions without licence (§§ 8-10 LRG). However, the provisions of the Act infringe the principle of freedom from the State to the extent that the decision of the State licensing authority is not adequately strictly bound by statutorily defined conditions, and evaluations of programme content are made possible; this is rightly stressed by the petitioners and the ARD.
aa) As far as the conditions for the licence are concerned, the licensing authority ought not to have been entrusted with verification and decision as to whether "facts justify the assumption that the applicant will infringe statutory provisions in production" (§ 5(4) LRG). Among these provisions are §§ 11-15 LRG, which establish principles for programme content. Accordingly, a judgement of the person and conduct of the applicant is called for, on the basis of which conclusions are drawn as to his future compliance with the law. This is possible only by way of a forecast involving the same questions as by § 28(1) LRG are involved in the programming control exercised by the Land Broadcasting Committee, which accordingly requires assessments of programme content. The distinction lies merely in the fact that in the case of § 28(1) LRG the basis taken is an actual transmitted programme, whereas in § 5(4) LRG it is a predicted one. Verification according to § 5(4) LRG is accordingly harder and less certain, but not different in nature in the essential respect here. The influence the provision gives the State licensing authority over access by private producers does not rule out the possibility of not only disciplining unwelcome producers subsequently, as in the case of programming control, but not letting them speak at all from the outset. Judicial control over licensing decisions can balance out this possibility of influence - not to say area of discretion - for the licensing authority only incompletely, since it can lead only to subsequent correction on individual occasions, but cannot prevent the State influence that from the outset characterizes the decision. Accordingly, irrelevant considerations and in particular ones that may limit plurality can enter into the decision, with both indirect and direct effect on the programme.
It cannot be argued against this that the State licensing authority ought to bring all applications, even the ones it has not considered, before the Land Broadcasting Committee for a selection decision, so that its assessment of the licensing conditions of § 5 LRG will not make any definitive prior choice. This would be incompatible with the unambiguous wording and the system of §§ 2ff. LRG. As follows from § 3(3), first sentence, LRG, the State licensing authority brings before the Land Broadcasting Committee only those applications that meet the licensing conditions of § 5. It accordingly decides alone and definitively on the existence of these conditions. The Land Broadcasting Committee it is not entitled to quash such a decision again.
According to all this, § 3(1) and (3), first sentence, taken together with § 5(4) LRG infringe Article 5(1), second sentence, Basic Law, to the extent that for verification and decision a competence of the State licensing authority is established.
By contrast, § 3(1) and (3), first sentence, taken together with § 5(5), second sentence, LRG seem still compatible with the requirement of freedom from the State. According to this provision the applicant must show a likelihood of being economically in a position to effect production in accordance with the application. Here the possibilities of evaluation are limited: the already existing programmes allow a certain cost framework for the production of broadcasting programmes to be indicated; and in part the cost can be defined unambiguously, such as the fees for channel use and programme through-put, or staffing costs. Moreover, the licensing authority has to take the intended programme as a basis and verify the appropriateness of the financing proposals presented. No direct influence over the programme is opened up by this. The danger of indirect influence on programme content appears, by comparison with the test under § 5(4) LRG, to be slight, because the licensing authority cannot in the event of shortcomings on its view prescribe how the producer is to guarantee the financing - say by reducing programming time, abandoning particular forms of programme or cutting staff. Accordingly, the precept of freedom from the State is not infringed.
bb) By contrast with the previously discussed cases, a State licensing authority has in principle no decisive influence over the decision as to the selection of the producers of full programmes; the selection is made by the Land Broadcasting Committee (§ 3(3), second sentence, LRG). The Committee also decides as to the special conditions listed in § 6(1), second sentence, LRG on the production of full programmes. The licensing authority has accordingly only a right of proposal (§ 3(3), first sentence, LRG). The same is true of the choice among several applicants meeting the conditions of § 6(1) LRG (§ 6(2) LRG). Certainly, the licensing authority's proposal may well have a certain de facto effect. Constitutional objections cannot however be derived from this.
The case is different with § 3(3), fourth sentence, LRG. According to this, if the Land Broadcasting Committee fails to take a selection decision before the expiry of a time limit of at most five months, this will count as having been taken in accordance with the licensing authority's proposal; whether the conditions of § 6(1) LRG are present and which of several applicants is to be chosen is accordingly considered and decided, in the upshot, by a State authority. Since this decision presupposes assessment of programme content, there is a clear breach of the principle of freedom from the State. § 3(3), fourth sentence, LRG can serve neither the creation nor the upholding of broadcasting freedom, nor is this provision justified by a bound set by Article 5(1), second sentence, Basic Law. By seeking to bring about a speedy decision, it may admittedly contribute to the rapid assignment of free frequencies. A guarantee of the decisive plurality of content is not however associated with this; still less so because the licensing authority, in accordance with its ties with government, may represent different views from the pluralistically composed assembly of the Land Broadcasting Committee. Interests of broadcasting entrepreneurs cannot justify any such provision either. Ultimately, it cannot matter either that this is a substitute competence, the object of which, as the Lower Saxon Land government has stated, consists primarily in subjecting the Land Broadcasting Committee to a certain pressure to act, considering its size, composition and procedure. Even taking into account the legislator's organizational freedom in principle (BVerfGE 57, 295 ), he may not in order to justify limitations on constitutional requirements appeal to organizational circumstances he has himself created without any constitutional necessity for them. As the corresponding provisions in other Federal Länder show, it is possible to structure the relevant body with a pluralist and expert composition, able on the basis of its size and procedural provisions to meet administrative requirements, making governmental "buffer competence" superfluous. Correspondingly, a provision similar to § 3(3), fourth sentence, is not found in any other Land Media Act. Given this position, the legislature is not free to choose the very conception that may be prejudicial to elementary requirements of broadcasting freedom. § 3(3), fourth sentence, LRG is accordingly unconstitutional and void. Accordingly § 3(3), third sentence, LRG becomes without object.
cc) Also incompatible with the principle of freedom from the State are the provisions of § 3(1) taken together with § 6(3), first sentence, LRG and § 6(3), fourth sentence, LRG. These are parts of a regulation according to which the production of non-preferential full programmes within the meaning of § 6(1) LRG and of other programmes requires a licence, to be issued by the licensing authority after hearing the Land Broadcasting Committee (§ 3(1) and (4) LRG). If the transfer possibilities underlying the licensing procedure are insufficient for the production of all programmes, the transmission volume is assigned proportionately (§ 6(3), first sentence, LRG). The assignment of transmission times in detail is to be agreed by the applicants; they are to inform the licensing authority of this, which assigns the times according to the agreement (§ 6(3), second and third sentences, LRG). If no agreement comes about, the licensing authority assigns the transmission times in a weekly alternation (§ 6(3), fourth sentence, LRG).
The law is silent as to the criteria whereby the licensing authority is to assign the transmission volume of non-preferred full or other programmes, that is, specialized programmes or those directed at particular groups. It is for the licensing authority to determine what type of programme is to receive priority and accordingly decisively to influence the range of producers. Additionally, its power of "proportional" assignment of transmission volume offers it a considerable discretion in decision: how the proportions are to be calculated remains open. The simplest distribution by number of applicants would leave out of account the fact that the desires of providers may essentially differ as to transmission volume, so that a schematic division does not come into consideration; and coalitions of providers could be in a worse position than individual interested parties. The State licensing authority must therefore decide according to criteria that it itself determines and may have perceptible effects on the content of the programme range. This is unconstitutional.
The same is true of § 6(3), fourth sentence, LRG. To be sure this states that transmission times are to be assigned "in weekly alternation". But this is only seemingly a characteristic that makes value-free decisions possible; there are many patterning possibilities that may influence programmes offered. Should the licensing authority, for instance, in accordance with the tenor, give each provider the possibility of transmission in sole use in accordance with its proportion for one week each, providers will only rarely be able to put on transmissions, even though at the most favourable time of day for them, something that will no doubt be worthless to them. If instead the licensing authority fills the transmission week with as many providers as possible then it can meet desires for a particular transmission time only in part, and it remains unclear how the alternation is to be patterned in detail. The licensing authority may thus set up obstacles that cause producers to drop out. Even apart from this, it may cause disadvantages to one or a number of providers, for instance by assigning constantly changing transmission times which, while they guarantee some equality of treatment, prevent a lasting link between audience members and particular producers.
The possibilities of influence thus arising are not rendered acceptable by the fact that providers can, pursuant to § 6(3), second and third sentences, LRG, avoid government intervention. As the distribution of transmission times for private providers on the recently created Rhineland-Palatinate audio-broadcasting chain has shown, distribution by agreement is hardly to be expected, since only a few times of day - particularly the early morning and the late afternoon - can offer adequate audience figures, which are necessary in order to sell advertising time. § 6(3), fourth sentence, LRG too cannot, because of the discretion for evaluation allowed the licensing authority, affecting programme range and content, stand up insofar as it establishes the competence of the licensing authority for transmission times.
dd) By contrast, the tenders for transmission capacity (§ 3(2) LRG) and the issuing of the licence in accordance with a selection decision by the Land Broadcasting Committee are not within the discretion of the licensing authority. Nor does it have a decisional discretion of significant for the content of programmes in deciding the details of the licence (§ 7 LRG). These are instead, according to the tenor and to the system of relevant provisions, bound decisions that do not call for any evaluations relating to programme content. There are therefore no constitutional objections to these provisions.
2. In other respects, the access and selection provisions of the Lower Saxon Land Broadcasting Act are in harmony with the Basic Law; they take account of the constitutional requirements (BVerfGE 57, 295 [326f.]). The misgivings raised in this respect in the petition and in individual observations are not justified.
a. This is true, firstly, for the licensing requirements of § 5 LRG. Apart from the shortcomings in Clauses 2 and 4 to be objected to, already discussed (III 1 a and V 1 d above), there are no constitutional objections to the arrangements in this provision. Even the limitation of the range of persons and associations to whom a licence may be issued, in the view of the petitioners and the ARD too narrow (§ 5(1) LRG), does not breach constitutional law.
If according to § 5(1), second sentence, LRG political parties and companies, persons and associations dependent on them cannot be issued a licence, this cannot be objected to, given the special status of parties. Whether in broadcasting a position of internal or of guaranteed external plurality exists is irrelevant. What is instead decisive are the aspects of distance from the State and impartiality of broadcasting, to which the explanatory statement to the government draft rightly refers.
If additionally, by § 5(1), first sentence, Point 1, LRG a licence may be issued only to legal persons under private law, so that legal persons under public law are in principle excluded, this too is a consequence of the freedom of broadcasting from the State, against which there is nothing to be noted. Anything different could apply only to public-law institutions that are themselves free of State influence and have rights in relation to the State, like the public-law religious or ideological associations explicitly mentioned in § 5(1), first sentence, Point 2, LRG; whether an exception even in favour of such bodies might be required would have to be reserved to verification in a specific individual case. No exception is required for municipalities, which, while guaranteed the right of self-administration, are themselves, as bearers of public power, a part of the "State".
Nor are there any objections against exclusion of members of the public service (§ 5(1), first sentence, point 4, LRG). This too seems justified by the principle of freedom from the State.
b) Finally, with the exception of the - unconstitutional - competence of the licensing authority (1 c above), the selective principles and allocation rules of § 6 LRG are not to be objected to. Critical objections by the petitioners and in part also the ARD have been made against § 6(1), second sentence, point 1, and (2), first sentence, LRG. These state that the licence application has to be for the highest permissible licensing period; this justifies primacy in any selection that becomes necessary. Additionally, § 6(1), second sentence, point 3, LRG is objected to; it says that the applicant should show a likelihood of being in a position to produce a programme that meets professional requirements. Neither provision infringes the constitutional requirement of equality of opportunity in access (BVerfGE 57, 295 ).
aa) The Federal Court took it as a basis in its judgment of 16 June 1981 that the legislature had an open choice between a system with full programmes and one with partial or specialized programmes (BVerfG, loc.cit.). Accordingly, no objection can be made to the provision of § 6(1), second sentence, point 1 LRG, especially since it is only in the relevant period of ten years (§ 7(2), first sentence, LRG) that amortization of the high investment can be expected and it seems objectively justified to assign the land-based frequencies that are in the forefront of interest but continue to be scarce to applicants interested in a long-term commitment to broadcasting and also capable of this (see also § 5(5), second sentence, LRG [1 b above]). Nor can the primary selective criterion in § 6(2), first sentence, LRG, namely the broadest possible utilization of transmitting time, be objected to. This feature is alongside the one of a contribution to the greatest possible plurality (§ 6(2), second sentence, LRG). The systematic connection between the first and second sentences would suggest making the pluralism-based selection according to the second sentence among those applicants intending to claim transmission time on a similarly broad basis. The Act accordingly considerably weakens the importance of the transmission time criterion by comparison with the plurality criterion. Finally, it should be borne in mind that the priority for full programmes need not lead to the admission of financially powerful individual providers that already influence or even dominate the market, as obviously feared by the petitioners. The relatively high access threshold may - as the first Lower Saxon licensing proceedings have shown - also be met by an association of providers which will then in any case have the advantage over individual providers in relation to the plurality requirements of Article 6(1), point 2, and (2), second and third sentences, LRG.
bb) Nor does § 6(1), second sentence, point 3 LRG infringe the requirement for equality of opportunity in access to broadcasting.
The provision does not open up a privileged access to broadcasting for the press. No ground to justify such unequal treatment could be seen; it would accordingly be unconstitutional. It is, to be sure, generally seen, particularly by the press itself, as an obvious development for the acceptance of advertising-financed private broadcasting to lead to a shift in advertising expenditure at the expense of the printed media. This general assumption alone, however, is not sufficient to justify the acceptability of a compensatory privilege in access to broadcasting for press firms. Established findings as to the effects in practice of such a shift are lacking (see also IV 2 above); in particular, it is unclear what types of newspaper will be affected by private broadcasting competition, what extent the losses may reach and what possibilities for compensating a relative loss by increasing advertising expenditure as a whole may exist. It is equally uncertain whether access for the press to broadcasting would be suitable for compensating the expected losses and whether in view of the continuing scarcity of frequencies and the high financial costs, it would be those press houses particularly affected by competition from private broadcasting that would be able to secure access to broadcasting. Given this objective position, it cannot be said that there is an adequate basis for differentiation. Press firms may lay claim only to the equal access to broadcasting granted to all under the Land Broadcasting Act.
Against the petitioners' view, § 6(1), second sentence, point 3, LRG does not establish any concealed press privilege, which would be just as unconstitutional as an open one. This sort of interpretation, admittedly, does not seem to be simply rules out; "professionality" can however also be seen as a criterion for guaranteeing a technical and formal minimal standard for producing broadcast transmissions, presupposing particular objective capacities and adequately trained and managed staff. To meet these standards, entrepreneurial experience in the area of the printed media is neither sufficient nor necessary: it in no way guarantees that the entrepreneur will be in a position to cope in particular with the technical requirements for producing broadcast programmes; on the other hand, an interested party may by employing staff from the journalistic, artistic and technical spheres and buying technical equipment build up a functioning broadcasting undertaking even without previous media experience of his own. This interpretation is confirmed by the genesis of § 6(1), second sentence, point 3, LRG: it is stated even in the explanatory statement to the government draft that professionality arises "from the staff composition of the applicant, but also from the range of workers under contractual obligation to him in the event of the issuing of the licence". On the view of the Landtag Committee for media questions, this is "a clause aimed merely at preventing crass amateurism"; no further-reaching goals were being pursued through the provision. The Committee additionally reports the government's view stated to it that this feature was to guarantee a certain performance standard for the particularly important full programmes of the first two available audio and television transmission possibilities; any producer not itself in possession of the requisite knowledge and experience could simply meet the requirement of the provision by employing qualified staff.
In this - constitutionally required - interpretation, § 6(1), second sentence, point 3, LRG avoids legally favouring press undertakings in access to private broadcasting. The provision also makes technically appropriate and individually acceptable requirements on applicants. As already explained (aa above), the legislator was able to make use of his drafting freedom by using free transmission possibilities primarily for two audio or television full programmes, intended to enter into direct competition with the already existing public broadcasting programmes. If, however, the legislature is permitted to choose this regulatory model for broadcasting, he cannot be constitutionally prevented from guaranteeing and shaping this model in detail through provisions that are conditioned by and fit the system. Scarce frequencies and high initial investments justify making acceptance as producers of full programmes dependent on the meeting of minimum technical and formal standards. The result is that only serious providers come into consideration as producers of full programmes, also capable of offering a supplement to the existing public programmes on a lasting basis and thereby putting into practice the legislative conception of a dual order of public and private broadcasting. Should the threshold for access to production of full programmes be too high for those interested, this will as a rule be dependent not on the criterion of professionality but on the considerable investment and operating costs; it cannot be concluded from this that the professionality criterion is individually unacceptable.
cc) The other selective rules of § 6 LRG cannot be constitutionally objected to from the viewpoint of equality of opportunity for access. Some reservations might be raised against § 6(3), second and third sentences, LRG, insofar as the Act regards agreement among applicants about allocation of transmission times as decisive and does not allow the Land Broadcasting Committee any review competence. The danger of a manipulated agreement, however, seems small; any effects on programme range itself could be stemmed by the Land Broadcasting Committee in accordance with §§ 15, third sentence, and 28. Additional measures therefore do not seem necessary.
The Lower Saxon Land Broadcasting Act, like the other new Land Media Acts, distinguishes the production of programmes, discussed so far, from their dissemination (§ 1(1) LRG); by the latter it understands the further distribution, without change of content, of audio and television programmes produced outside the area to which the Act applies, through technical transmission installations in Lower Saxony. It regulates these in §§ 44 and 46(2) and (3) LRG. These provisions are constitutionally objectionable on two points and accordingly in need of supplementation; in other respects they are compatible with the Basic Law.
1. Within the framework of the range of broadcasting programmes in the Federal Republic, considerable importance attaches to programmes disseminated in cable networks in the Länder. This is true in particular for re-broadcast television programmes, ones, therefore, not directly receivable with an ordinary aerial; among these there is not only an overwhelming number from outside the Federal Land concerned but also a number of private programmes produced in other European countries, so that here the beginnings of the already-mentioned European broadcasting market become visible.
If, then, the development of the new media is leading to cross-border broadcasting, this cannot be left out of account in the legal regulating of the dissemination of such programmes. Those who put on or produce trans-regional programmes will find it hard to follow a whole set of differing Länder norms; this is particularly true of advertising. A functioning system of dissemination depends, instead, on coordination of Länder legislation and accordingly on cooperation among the Länder. By contrast with the utilization of satellite capacities, in which disposal of the broadcast of programmes receivable directly in all Länder can be handled only by all Länder jointly (cf. Bullinger, AfP 1985, p.1 ), the necessity for such cooperation in regulating dissemination does not follow directly from the special nature of the task and the principles decisive for carrying it out; it does, however, follow, insofar as this is necessary for a functioning system, at least from the principle of federal comity, which obliges Länder to mutual accord, consideration and cooperation.
The position described is of importance for the constitutional requirements on the content of Länder regulations too. While the minimum requirements still to be discussed and the measures necessary to guarantee them require standardization, they do not, by contrast with the petitioners' view, have to go so far as do the requirements on the production of broadcast transmissions, especially since programmes disseminated are subject to review at the point of production and are in the Federal Republic bound by provisions that are largely in accord with each other. Nor can it be seen what could be reached through strict requirements if at the same time programmes transmitted from outside the Land and receivable with average aerials are in principle inaccessible to Länder regulation as "generally accessible sources" (Article 5(1), first sentence, Basic Law), and the number of these programmes will increase still further with the advancing development of technology.
2. a) The Lower Saxon Land Broadcasting Act lays down the principle, in § 44(1), of free further dissemination; the legislature is here pursuing the goal of improving the citizen's access to other broadcast programmes from home and abroad. This is not open to any constitutional objection. Also unobjectionable constitutionally is the arrangement made in § 46(2) and (3) LRG whereby for programmes to be disseminated further, should capacity be insufficient, a selection is provided for in which majority wishes of the audience have to be taken account of. The legislator has thereby met the requirement for selective principles (BVerfGE 57, 295 ) and adequately defined the criteria of selection.
b) That the Act otherwise refrains from special permission for further dissemination of broadcast transmissions cannot be objected to constitutionally.
According to the case law of the Federal Constitutional Court, in the case of every form of statutory order for broadcasting, prior review of whether, on including private broadcast productions or adding further producers, the requirements of broadcasting freedom are met is indispensable (BVerfGE 57, 295 ). For the production of broadcast transmissions, the Court has considered it necessary for the legislature to create access provisions and provide for a constitutional procedure for review and decision (BVerfG, loc.cit.). However, there does not follow from this a need for formal licensing of programmes for further dissemination, as the other Land Media Acts, with the exception of the new Rhineland-Palatinate Land Broadcasting Act of 24 June 1986 (§ 22) provide, and as the petitioners also regard as necessary.
§ 44(2) LRG requires that the intention to disseminate be notified to the licensing authority one month "before the measure begins", here excepting the unaltered dissemination of a programme in municipalities or associated municipalities in whose territory this programme can already be received with average aerials. The licensing authority shall bar the dissemination of the programme or the advertising before commencement if, with likelihood bordering on certainty, breaches of the provisions of § 44 (3) LRG or of general laws are to be expected (§ 44(4), fourth sentence, LRG). The measures, and therefore also the ban by the licensing authority, are to be adopted at the request of the Land Broadcasting Committee (§ 44(4), fifth sentence, LRG). Accordingly, by § 44 LRG too prior review of whether the requirements of broadcasting freedom have been satisfied is required. If this review ends in a formal provision only if the answer is in the negative, that is a consequence of the freedom of dissemination laid down by the Act (§ 44(1) LRG). The procedure meets the same functions as a special licensing procedure; however, it avoids the delays and complications that would inevitably arise were providers of a federation-wide programme to have to seek special permission to disseminate it in each of the federal Länder.
c) The substantive legal requirements on the dissemination of broadcast programmes (§ 44(3) LRG) are, like the measures created to guarantee them, compatible with the Basic Law. Objections are however to be made to the failure to impose an obligation for technically correct, comprehensive and true information and the lack of adequate securing of the right to a contrary presentation in the case of transmissions from elsewhere disseminated in Lower Saxony.
aa) According to the case law of the Federal Constitutional Court, the legislator has to make guiding principles for the content of the total programme binding that guarantee a minimum of balance, realism and mutual respect in content (BVerfGE 12, 205 ; 57, 295 ). In the case of an "externally pluralist" model, the individual producers are not obliged to any balance; but they too remain obliged to make technically correct, comprehensive and true information and to a minimum of mutual respect (BVerfGE 57, 295 ). This obligation applies not only to the producers; it exists also in the case of further dissemination. By contrast with directly receivable programmes produced outside the Land, the feeding of imported programmes into cable installations is not outside the legislature's influence. The freeing of this feeding-in establishes his responsibility for ensuring that programmes disseminated by cable do not infringe broadcasting freedom. Accordingly, in the case of such programmes too the legislator has to guarantee technically correct, comprehensive and true information as well as a minimum of mutual respect. The Land Broadcasting Act does so only imperfectly in the provision of § 44(3), first sentence, LRG; for this provision generally excludes only the further dissemination of programmes that infringe the dignity of man, contain pornographic portrayals, show violence, incite race hatred (§ 11(3)), infringe the provisions on protection of minors (§ 14) or fail to meet individual provisions on advertising (§ 26(1) and (5), second sentence). To be sure, § 44(3), first sentence, LRG can be given a constitutionally requisite interpretation to the effect that the ban on infringing the dignity of man also includes the requirement for a minimum of mutual respect. In part, too, "general laws" should operate here, for instance in the case of transmissions with a defamatory content. An obligation to technically correct, comprehensive and true information is however totally lacking even if it may, particularly for domestic programmes, exist according to the law applying to their production. To that extent, the petitioners in the case rightly object that § 44(3), first sentence, LRG does not mention the provision of § 13. The obligation to technically correct, comprehensive and true information need not be justified in the form, still less in the words, of § 13 LRG. Since it is not however contained in § 44(3), first sentence, LRG, the provision seems to that extent incompatible with Article 5(1), second sentence, Basic Law.
bb) By contrast with the Media Acts of a number of other Federal Länder (see e.g. Article 35(1), first sentence, point 7, of the Bavarian Media Experimentation and Development Act), the Lower Saxon Land Broadcasting Act contains no provision guaranteeing a counter-presentation against broadcast programmes disseminated in Lower Saxony. § 18 LRG concerns only programmes produced in the Land. There is guaranteed protection for those concerned accordingly only insofar as the Media Acts of other Federal Länder allow an entitlement to counter-presentation against producers resident there. Things may be different with producers having their seat abroad, especially since not all foreign legal systems allow a substantively and procedurally effective right of counter-presentation. Those concerned are, to be sure, not totally deprived of rights here; but the Land Broadcasting Act does not ensure that in Lower Saxony only those broadcast programmes can be disseminated against which there exists effective possibility of redress, specific to the medium, for those affected by a presentation.
Such a measure is required by the constitutional guarantee of the general right of personality: this obliges the legislature, in the light of the facts of the modern mass communications media, to provide effective protection of the individual against media effects on the individual sphere. In particular, a person affected by a presentation in the media must be allowed a legally guaranteed possibility of acting against this with a portrayal of his own; otherwise, he would be degraded into a mere object of public discussion (BVerfGE 63, 131 [142f.]). If, accordingly, the Lower Saxon legislator has omitted in regulating the provisions for further dissemination of broadcast transmissions to guarantee the protection of personality required here, this is incompatible with Article 2(1), taken together with Article 1(1), Basic Law.
cc) By contrast, where § 44(3), second sentence, LRG, over and above the first sentence, extends the requirements of § 15 to notifiable programmes produced within the area to which the Basic Law applies, no infringement of constitutional law can be seen.
This provision is not problematic in relation to imported programmes which by the law under which they are produced must meet the requirement for internal plurality of content; their dissemination is admissible. If a notifiable opinion programme considerably disrupts the balance of the other programmes so that its input is not in harmony with § 44(3), second sentence, LRG and if dissemination of the programme is barred on this ground (§ 44(4), first sentence, LRG), then there are no constitutional objections to this.
Nor can there be objection to the fact that the dissemination of programmes of foreign producers is not made subject to the requirements of § 15 LRG. This seems technically defensible because these programmes as a rule are not specially intended for the Federal Republic and therefore do not influence opinion formation to the same extent as domestic programmes, especially since they are in the main not transmitted in German. Moreover, it could hardly be expected of foreign producers that the significant political, ideological and social forces and groups of the Federal Republic should be appropriately given expression in their programmes, as § 15 LRG provides.
Finally, serious dangers to broadcasting freedom cannot be seen as arising either from the small requirements on advertising in disseminated programmes. For these, § 44(3), third sentence, LRG makes only § 26(1) and (5), second sentence, LRG binding, and only in notifiable German-language programmes. According to this, advertising must be clearly separate from the rest of the programming; it is admissible only in blocks; interruptive advertising is allowed only once, and only in the case of transmissions lasting over one hundred minutes (§ 26(1)). Additionally, advertising must be at least Land-wide in reference (§ 26(5), second sentence). These provisions are to be regarded as sufficient, especially since the provisions of § 26 LRG excluded from application have no or only slight practical importance (see IV 2 above).
dd) The on the whole lower requirements that the LRG places on the dissemination of programmes might, to be sure, as the petitioners rightly stress, give occasion for avoiding stricter provisions on the production of broadcast transmissions, in particular the requirements of § 15 LRG; providers might produce programmes at a place where they were subject to only slight restrictions and then feed them into Lower Saxon cable installations in accordance with § 44(3) LRG. This is true particularly of German producers' programmes imported from abroad.
By contrast with other Land Media Acts the Lower Saxon Broadcasting Act contains no provision that seeks to oppose such a development by special provisions. The petitioners cannot however be followed in seeing this as a violation of the Constitution. The nature and extent of the dangers to be feared can scarcely be foreseen with certainty at the moment. Should it, however, prove that the existing regulations are insufficient to effectively oppose dangers for broadcasting freedom, it will be the task of the legislator to cope by subsequent improvement.
ee) By contrast with the view of the petitioners and some opinions, the provisions whereby the Lower Saxon Land Broadcasting Act guarantees compliance with the provisions discussed are not constitutionally objectionable either. Neither the procedure nor the extent and means of control display essential failings.
To the extent that programmes disseminated in Lower Saxon cable networks must meet the requirements of §§ 11-15 and § 26, they are subject to control by the Land Broadcasting Committee (§ 28(1) LRG). In the case of breaches, the measures to be taken are by contrast a matter for the licensing authority, which takes these measures at the request of the Land Broadcasting Committee (§ 44(4), fifth sentence, LRG). The licensing authority shall ban the dissemination of a programme where this repeatedly infringes the provisions mentioned in § 44(3) or other provisions of general laws (§ 44(4), first sentence). In the case of breaches of the provisions on advertising, only the latter is to be barred (§ 44(4), second sentence). The bar must previously have been warned of in writing (§ 44(4), third sentence). It is incumbent on those responsible for the dissemination to supply the licensing authority and Land Broadcasting Committee with the necessary information and to make the corresponding documents available (§ 44(5), first sentence).
If the Act has thus, departing from all the other Land Media Acts, shifted part of the competence to the licensing authority, no necessity for this can be seen. Since however the licensing authority cannot act without the agreement of the Land Broadcasting Committee (§ 44(4), first sentence LRG), objections cannot be raised in this respect. Nor can the provision be objected to, as the petitioners think, because of the "thinner" review criterion. Where the substantive legal requirements are lower, less control is required. If, further, the only penalty provided for is a ban on dissemination, this ought also to be the only means considered and available; an instruction to refrain from the violation (cf. § 28(2), first sentence, LRG), is excluded, because Lower Saxon authorities would not be empowered to issue instructions to producers outside the Land. The finding of a breach, which can be thought of as the mildest means, always remains open to the licensing authority; it is even essential in order to justify a threat of a ban. By contrast with the petitioners' view, the checks cannot be seen as inadequate because the penalty of a ban is to be pronounced only in the event of repeated breach; it seems entirely proportionate for this serious intervention to be bound up with tighter requirements. Where the petitioners further object that steps may be taken only against severe and not minor breaches, the same applies as to the production of broadcast transmissions (II 2 c above).
If, accordingly, the means of control are suitable and adequate, then the same is true of the obligation laid down in § 44(5) LRG on those responsible for programmes to provide the licensing authority and the Land Broadcasting Committee with the information required for them to carry out their tasks, and to make corresponding documents available. To be sure, § 17 LRG makes only producers of programmes required to list transmissions, while the Act does not establish a corresponding duty for disseminated programmes. This cannot however justify a conclusion of the unconstitutionality of § 17 LRG nor decisive objections to the overall regulation of the checks: often lists are to be produced and made available in accordance with the law applying at the point of production, the submission of which can be demanded under § 44(5) LRG. In other respects the Land Broadcasting Committee, insofar as it cannot effectively carry out its tasks without a listing, has to ensure one itself, which is not hard to do using recording machinery of its own.
Judges: Dr. Herzog, Dr. Simon, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner, Dr. Henschel.
This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.