The German district court in Bremen held on the 9th of August 2013 that Kabel Deutschland (plaintiff), the biggest cable network company in Germany, is legally obliged to carry public channels, including that of Radio Bremen, via their cable network at no charge to the operators of those channels. The court furthermore found that Kabel Deutschland is not allowed to make use of any encryption with respect to these publically financed channels.
This issue arose because the public channels terminated an existing carriage agreement under which they paid fees to Kabel Deutschland. The reason given for the termination was that the agreement had been based on facts which had changed and that the fees that they were paying for carriage of their channels could not be justified anymore. Kabel Deutschland argued that the carriage agreement should be extended as to allow the channels free distribution would be unconscionable (“sittenwidrig”) in light of Kabel Deutschland’s statutory obligation to distribute the channel and also that competition law would require the channels to pay the fees.
The court confirmed the channels legal assessment. It especially emphasised that its decision is also in the interest of Kabel Deutschland since the availability of the channels leads, in part, to customers paying for Kabel Deutschland’s services.
After this decision, the situation of cable network providers will differ from the one of satellite and terrestrial network providers, which will still charge these channels for carriage. However, the court also held this distinct treatment to be justifiable. It stated that unlike cable network providers, satellite and terrestrial providers are not able to finance themselves by customer charges for unencrypted programmes.
This decision is in line with decisions of other courts of first instance, such as the district courts in Cologne, Stuttgart and Berlin and it confirms the other courts’ findings. Hence, the publicly run channels seem – at least in first instance – to be able to avoid carriage fees and cable networks might lose a significant source of their revenues. However, if this assessment will also be shared by courts of higher instances or if these courts will find different answers remains to be seen in the future.