Facts
The Association against Animal Factories (VgT) intended to broadcast a television spot in January 1994 that was to draw attention to the "cruel livestock farming" and promote a reduction in meat consumption. The Advertising Television Company (AGW) informed the VgT that the spot could not be broadcast in the planned form as it had a "political character". The VgT refused to revise the spot and demanded the issuance of a contestable order. The AGW confirmed that it would not broadcast the spot as it violated Art. 14 of the Radio and Television Ordinance and its General Terms and Conditions.
The VgT appealed this decision to the Directorate General of the SRG and the Independent Complaints Authority for Radio and Television (UBI). The UBI forwarded the submission to the Federal Office of Communications (BAKOM) to examine whether it should be received as a complaint to the licensing supervisory authority. BAKOM informed the VgT that it saw no reason to initiate proceedings against the SRG, as neither the Federal Constitution nor the Radio and Television Act could be derived a "right to airtime".
The VgT then filed an administrative court appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the appeal, insofar as it entered into it.
It stated that the SRG acts under private law, not public law, when acquiring and broadcasting advertising, and is therefore not legally obliged to formally decide on the (non-)admission of the VgT's advertising spot.
However, BAKOM should have responded to the VgT's request for a declaratory decision and examined whether there was an exceptional public law claim to access to advertising television protected by the convention. Since BAKOM…