If a broadcasting subscriber operates registered broadcasting receivers in the rooms of his or her single-family home, which are used exclusively for private purposes, and additionally operates an internet-capable computer (personal computer) in his or her home office, which is used for professional purposes, this computer is exempt from broadcasting fees. This was decided by the Hessian Administrative Court - without an oral hearing - in a decision of 30 March 2010.
The plaintiff was the occupant of a detached house who pays radio and television licence fees for the privately used receivers located on the upper two floors of the house. In the basement of the house, there is a study which the plaintiff uses for his work as a self-employed computer scientist. There is no "classic" radio or television set in the study, but there are computers connected to the internet.
By decision of March 2008, the Hessischer Rundfunk (Hessian Broadcasting Corporation) charged the plaintiff broadcasting fees in the amount of € 16.56 for the period from August to October 2007. After an unsuccessful objection, the plaintiff filed an action against the fee notice, claiming, among other things, that the broadcasting fee for internet-enabled PCs not only violated the provisions of the Basic Law in several respects, but also the Interstate Broadcasting Treaty. The lawsuit was successful in two instances.
In its judgement of 8 September 2009, the Administrative Court of Frankfurt am Main ruled that the imposition of broadcasting fees violated the State Treaty and was therefore unlawful. The Hessischer Rundfunk appealed against this decision and argued that an application of the State Treaty based only on the wording fails to recognise that the privileged use of internet-capable PCs should only be limited to the area of a residential property which is not used exclusively for private purposes. Therefore, internet-capable PCs are only exempt from broadcasting fees if other broadcasting receivers that have already been registered are already kept available in the non-exclusively private area of a property. This applies irrespective of whether there are also devices in the exclusively privately used area of a property. The exemption from fees for internet-capable PCs was not related to the entire area of a property or contiguous properties.
The Hessian Administrative Court did not follow this line of argument. Since the plaintiff's PCs were used commercially and thus not exclusively privately and other broadcasting devices were kept ready for reception on one and the same property, namely the plaintiff's privately used radio and television sets, which were located in the privately used part of the single-family house, the regulation of the State Treaty on fee-exempt devices for the PCs applied here. Irrespective of whether an internet-capable PC is at all a new type of broadcasting reception device within the meaning of the Interstate Treaty on Broadcasting Fees, which the Senate expressly did not decide, the wording of the corresponding provision of the Interstate Treaty on secondary devices or on fee-exempt devices was unambiguous. According to this provision, the exemption from fees for internet-capable PCs only presupposes that a registered broadcasting device is already present on one and the same property or contiguous properties. This was also objectively justified - unlike in the case of "classic" radio receivers, which were kept ready as second devices in workrooms and for which fees had to be paid - since in the case of internet-capable PCs, the ability to receive broadcasting was only one of many features of these devices.
The appeal was not admitted. An appeal is possible against the non-admission of the appeal, which would have to be decided by the Federal Administrative Court in Leipzig.
Decision of the Hessian Administrative Court, Az: 10 A 2910/09
Note: Section 5 (3) of the Interstate Broadcasting Treaty reads:
No broadcasting fee is payable for new types of broadcast receivers (in particular, computers that can play back broadcast programs exclusively via offerings from the Internet) in the non-exclusively private sector if
1. the devices are to be assigned to one and the same property or contiguous properties, and
2. other radio receivers are kept ready for reception there.
If only new types of radio receivers, which can be allocated to one and the same property or to contiguous properties, are kept ready for reception, a licence fee shall be paid for the totality of these devices.
Source: Hessian Administrative Court press release
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
