Federal Administrative Court: On the permissibility of regional advertising on national television

Federal Administrative Court, Decision of 17 December 2014 (case no. 6 C 32/13)

Head note

Regional differentiation of ad spots by a national broadcaster does not require special permission under broadcasting law, and is otherwise also in accordance with broadcasting law.

Annotations

The Federal Administrative Court on 17 December 2014 issued its decision on the permissibility of regional advertisement in television programs broadcast nationally (case no.: 6 C 32/13). According to the decision of the Court, no special broadcasting license is required for regionally differentiated advertisements in television programs broadcast nationally. More generally, regional advertisement is compatible with the provisions of the Interstate Broadcasting Treaty (RStV).

The suit was filed by a television promoter wishing to offer its advertising customers the option of broadcasting regional ad spots during programs broadcast nationally. The Administrative Court of Berlin decided at trial that advertising is a component of the broadcast program. An entity with a broadcasting license for national television is thus only entitled to broadcast advertising nationally (Decision of 26 September 2013, case no.: 27 K 231/12).

No specific licensing requirements for advertising

In response to the plaintiff‘s direct appeal on points of law, the Federal Administrative Court reversed the decision of the Administrative Court of Berlin and decided that the holder of a national television broadcasting license does not require permission under broadcasting law for the regional differentiation of advertising. In the view of the Federal Administrative Court, Sec. 20 Para. 1, Sentence 1 RStV only mandates licensing for the presentation  of programming with editorial content. However, the Interstate Broadcasting Treaty contains no licensing requirements beyond this. Accordingly, broadcasters are thus also entitled to broadcast regionally differentiated advertisements. Limits on this authorization could arise, if at all, only from broadcast advertising law.

Criticism from regional and local media

Heavy criticism of the decision was leveled particularly by publishers. Concern is rife that, as a result of regionalised television advertising, advertising income would be drawn away from local and regional print, TV, and radio media – all of which already suffer from declining audiences – in favour of the highly-rated national channels.

Amendment of the Interstate Broadcasting Treaty as of 1 January 2016

Subsequent to the decision of the Federal Administrative Court, the German States responsible for broadcasting legislation first considered amending the Interstate Broadcasting Treaty to clearly state the position of advertising in broadcast programming, and to provide a “door-opener clause” under which the individual German States would be permitted to license regionally broadcast advertising in programs broadcast nationally. This proposal was first halted by the State of Bavaria, in order to determine the need for protecting local advertising markets or, in other words, the extent to which the existence of local and regional reporting is threatened by the possibility of regional advertising in national television programs. The federal States have since agreed to amend the Interstate Broadcasting Treaty to include a prohibition on regional advertising on national television.

Conclusion

Television promoters may broadcast regionally differentiated advertising in programs broadcast nationally without requiring a special broadcasting license to do so. The Interstate Broadcasting Treaty does not currently contain any such licensing requirements. As of 1 January 2016, broadcasting of local advertisements on national television will be prohibited by law, subject to special exception.