It is determined in the German Constitution that the Länder are exclusively equipped with the mandate to regulate electronic media. The Federal Constitutional Court defines specific obligations to be observed by state legislation dealing with the broadcast medium. The regulation is under a positive duty to enact rules ensuring that television and radio will serve the purpose of promoting the free formation of individual and public opinion. This aim is promoted by a standard of a “balanced diversity” of all broadcast programs; the communication law has to establish a framework that will allow for different viewpoints to gain access to the medium. Such a standard mandates safeguards against concentration of ownership in the broadcasting industry and the accumulation of power to dominate public opinion. For this reason, the legislative bodies of the Länder are specifically obliged to provide for mechanisms that will contain media outlets’ concentration of control, as KEK points out.
The organisational and legal structure of broadcasting corporations is defined in Länder laws and, if more than one state is involved, in agreements between several or all Länder. A basic agreement of all Länder (Rundfunkstaatsvertrag) defines the general broadcasting conditions, as far as both the public and the commercial sectors are concerned.
Supervisory councils are important in both the public and private sector. All PSM corporations are governed by an ideally independent Rundfunkrat (Broadcasting Council), whose representatives are supposed to reflect the “socially relevant groups” of society, according to a Federal Constitutional Court’s ruling. Broadcasting Councils oversee the fulfilling of program standards and elect the director of a broadcaster, whereas Broadcasting Boards mainly decide on financial and personnel issues. Both bodies follow a representative democracy model. The council members are representatives of “relevant social groups”, like official representatives, employer and trade associations, employee organisations and unions, churches and educational institutions. The representatives are mandated to represent the general public and not their sending organisation. Aside from this process, there is no possibility for the broader public or civil society to participate in media governance.
With the advent of commercial broadcasting, all Länder drafted media laws (in addition to the existing broadcasting laws) in the 1980s. These laws specifically regulate the electronic media outside the conventional public-service corporations, mainly by distributing commercial radio and TV licences, and deciding which programmes may be fed into cable systems. For this purpose new supervisory bodies (Landesmedienanstalten) were created, each with a council resembling those of the public-service broadcasters. All in all, 14 such bodies are active in 2016. Because of the strong federal element, some TV and most of the radio is regional or even local.