The public broadcasting license fee and public value

On September 11, 2007, the German Constitutional Court added a new one to their long list of decisions related to television broadcasting.

In a 33-page statement, the court ruled that the freedom of public service broadcasters is infringed upon as soon as politicians and governments interfere with the process of determining the price level of the mandatory license fee to be paid for Germany’s extensive public broadcasting system. This was a slap in the face of the state (Länder) governments, which the last time when the broadcasters applied for a raise, just did not follow through and cut a percentage of the demanded increase.

The court’s argument is that as soon as the political sphere takes money away from pubcasters, this constitutes an unlawful influence detrimental to their function. Otherwise, as the court phrases it, the broadcasters would “no longer be availing themselves of a freedom, but merely be executing predetermined programmes.”

The only thing German lawmakers may do now is to abstractly and generally define the framework under which public broadcasting operates – as long as they make sure that they themselves (or the state, for that matter) do not have any direct control over programme contents or even programme quantity.

This is good, on the one hand, because it strengthens the independence of German broadcasters from the government. But on the other hand, the decision may also further remove the public broadcasting planet from real life.

Like all institutions public or private, it has an inherent tendency to not only perpetuate itself, but to grow. With most organisations though, such growth is limited by either budget or market success. In contrast to that, German pubcasters may now basically determine by themselves how much money they collect from citizens. The one independent commission involved in this process only checks whether the broadcasters’ financial requirements are inherently sensible, e.g. whether the production costs for TV movies are inflated or realistic by the standards of the television sector in general. But it cannot comment on the desirability of the programme activities as such.

In October, 2007, as the decision for the next round of license fee increases is due, German politicians do not dare question the pubcasters’s financial claims any more, but will rather wave them through.

Instead, there has been raised a new issue in the political debate: how to better describe and legislate the function of public broadcasting, which is the only way left to exercise control over the system. This is where the European Union comes into play. While Europe leaves the making of rules for public broadcasting to the member states, the European Commission will start to object as soon as either the financing or the actions of public broadcasters distort competition. To this end, it requires that license fees only finance programmes genuinely and demonstrably in the public interest – an idea which was quickly embraced by German politicians (as it has been in the UK).

Therefore, the next amendment of the German broadcasting treaty (supposed to go into effect force by March 2008) will require a “public value test” for any major new project taken on by the pubcasters or the fundamental re-definition of already existing activities. In typical European fashion, the test will probably include consultations with the public and other stakeholders, namely the commercial broadcasters. The exact modalities remain under discussion.

If this public service test is taken really seriously, we may be in for quite a few nice, and rather revealing, disputes. Ideally, it would mean that private media companies could stop any public-sector programme merely by proving that they are willing and able to provide it in a better way. But can you imagine commercial TV stations obliged to demonstrate that their news, children’s programmes or documentaries actually serve the public interest better than what the pubcasters provide in the same categories? Or public broadcasters arguing why paying huge amounts of money for sports rights is in the best interest of license fee payers? If implemented in the right way, this approach might, indeed, revitalise the discussion about quality in broadcasting, and even strengthen public ownership in and identification with public broadcasting. So let’s hope the politicians don’t botch this up.