Germany

[DE] ANGA and Premiere Reach Settlement

IRIS 2001-5:1/7

Caroline Hilger

Saarbrücken

The long-standing legal dispute between the Verband privater Kabelnetzbetreiber (Union of Private Cable Network Operators - ANGA) and pay-TV broadcaster Premiere over fees for carrying the analog TV channel has been settled out of court.

Under the terms of the settlement, Premiere is obliged to withdraw its appeal to the Bundesgerichtshof (Federal Supreme Court - BGH) against a decision of the Hanseatische Oberlandesgericht (Hanseatic Court of Appeal - OLG Hamburg) and a complaint it lodged with the Bundesverfassungsgericht (Federal Constitutional Court). Premiere has also agreed to reimburse all of ANGA's legal costs.

As a result, the earlier decisions given in ANGA's favour by the BGH (ruling of 19 March 1996, IRIS 1996-5:11) and by the OLG Hamburg have now entered into force.

During the proceedings, alongside its claim for payment of fees, ANGA had asked the courts to rule that it was not obliged to carry Premiere's channel on its cable network free of charge and that, until a suitable fee was agreed, it was entitled to refuse to carry the channel. ANGA argued that it was "unfair" to charge the cost of carrying Premiere to all users of the cable network, since it was an encoded channel that only a limited number of households on the network would be able to receive. Premiere should therefore pay ANGA a fee for use of its networks. Premiere, on the other hand, demanded equal treatment with other commercial channels, which were carried free of charge.

The Federal Supreme Court had largely agreed with ANGA's submissions in its aforementioned ruling and had referred the dispute back to the OLG Hamburg which, after re-examining the facts of the case, also ruled in ANGA's favour. Premiere appealed against this decision, although under the terms of the settlement, that appeal has been withdrawn.

In return, ANGA has agreed to carry the analog Premiere channel free of charge until 30 June 2001. By the end of the year, Premiere will, in any case, cease to use analog technology and will only broadcast pay-TV channel Premiere World digitally. In relation to its digital service, Premiere has already (in October 1999) signed a contract with Deutsche Netzmarketing GmbH (NMG), under which cable operators will be paid a fee depending on the channel's scope of distribution and number of subscribers.