Overview
McDermott Will & Emery has successfully advised Deutschlandradio on a settlement with Vodafone subsidiary Unitymedia. With the settlement a series of lawsuits between the companies comes to an end that have been conducted for years about the continued payment of cable feed-in fees from contracts terminated by all public broadcasters at the end of 2012; for antitrust reasons the validity of these terminations was disputed.
Following the settlement, Deutschlandradio reached an agreement with Unitymedia to resume the early 2019 disconnected digital cable feed of the Deutschlandfunk radio stations Deutschlandfunk, Deutschlandfunk Kultur and Deutschlandfunk Nova into the cable networks of North Rhine-Westphalia, Hesse and Baden-Württemberg;Deutschlandradio also agreed on a long-term cooperation with Unitymedia and its parent company Vodafone with regard to the digital distribution of nationwide radio and the Deutschlandfunk audio library in all German federal states.
Deutschlandradio had several times terminated a contract regarding the distribution of its programs in the Unitymedia and Vodafone/Kabel Deutschland networks, most recently with effect to the end of 2018. Deutschlandradio and the cable network operators had been negotiating a new agreement for the cable distribution of Deutschlandradio programs for some time.
Unitymedia – contrary to Vodafone/Kabel Deutschland – had first sued Deutschlandradio in 2012 for allegedly owed cable feed-in fees for the calendar year 2013. After settlement negotiations involving McDermott had failed at the end of 2017, the Unitymedia companies filed further lawsuits against Deutschlandradio in order to enforce payment of the feed-in fees allegedly owed for the years 2014 and 2015. In June 2015 and April 2016, the German Federal Supreme Court (BGH) had already issued landmark rulings in parallel proceedings conducted by Kabel Deutschland against all other public broadcasters and referred the proceedings back to the respective Higher Regional Courts (OLG).
The regional courts of Mannheim and Cologne dismissed Unitymedia’s lawsuits against Deutschlandradio. In December 2016, the OLG Karlsruhe also dismissed the appeal of Unitymedia BW, whereas the OLG Düsseldorf decided in favor of the cable network operators. After a successful non-admission appeal, one of the proceedings was admitted to the BGH. With the current settlement, the hearing before the BGH scheduled for the beginning of December 2019 was not longer necessary.
McDermott partner Ralf Weisser has represented Deutschlandradio since the beginning of 2013 in various legal disputes with Unitymedia regarding the payment of cable feed-in fees. In the current case the McDermott team was led by Ralf Weisser and included Claus Färber and Daniel von Brevern.
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