Handling of and Investigations into Competition Complaints in the Telecommunications and Broadcasting Sectors and Merger & Acquisition Cases in the Telecommunication Sector

The Competition Ordinance provides for a cross-sectoral competition law prohibiting anti-competitive conduct in all sectors. Under the Competition Ordinance, the CA is conferred concurrent jurisdiction with the Competition Commission to enforce the Competition Ordinance in respect of the conduct of undertakings operating in the telecommunications and broadcasting sectors, including merger and acquisition activities involving carrier licensees in the telecommunications sector.

Pursuant to the memorandum of understanding (“MoU”) signed by the CA and the Competition Commission, the CA will ordinarily assume the role of the lead authority for matters falling within the concurrent jurisdiction. For matters involving issues that are partly within and partly outside the concurrent jurisdiction, the CA and the Competition Commission will discuss and agree on how best to process the matter on a case-by-case basis.

From 1 April 2017 to 31 March 2018, a total of 43 complaints and/or enquiries were received under the Competition Ordinance, with 41 cases closed without the need for further actions and two cases under processing. During the year, we also assisted the CA in reviewing two transactions under the merger rule of the Competition Ordinance, and no further action was considered necessary in respect of these transactions.

Following the ruling of the Court of First Instance on TVB’s JR against the appeal mechanism under the BO and the CA’s decision on a complaint relating to TVB’s alleged violation of the competition provisions under the BO in January 2016, the CA filed in February 2016 its Notice of Appeal to the Court of Appeal. We continued to assist the CA in conducting the necessary preparatory work for the appeal.

Handling of and Investigations into Complaints about Unfair Trade Practices in the Telecommunications and Broadcasting Sectors

The fair trading sections of the Trade Descriptions Ordinance (“TDO”) prohibit certain specified unfair trade practices by traders in the provision of goods and services to consumers.

The CA is conferred concurrent jurisdiction with the Customs and Excise Department to enforce the fair trading sections of the TDO in relation to the commercial practices of licensees under the TO and the BO directly connected with the provision of telecommunications and broadcasting services. The two enforcement agencies have entered into an MoU to co-ordinate the performance of their functions under the fair trading sections of the TDO and have issued a set of enforcement guidelines to provide guidance for traders and consumers as to the operation of the fair trading sections.

From 1 April 2017 to 31 March 2018, OFCA handled a total of 429 complaints under the TDO. Of these cases, 353 were closed due to insufficient evidence to suspect/establish a contravention, or because they fell outside the scope of the TDO; 26 cases were closed after the CA issued advisory letters to the licensees concerned to bring to their attention the subject matter and advise them of the need to improve their relevant commercial practices in relation to the sale, supply or promotion of telecommunications or broadcasting services to consumers; and the remaining 50 cases were under processing at various stages.

Enforcement of the Unsolicited Electronic Messages Ordinance

Do-not-call Registers

We have established three Do-Not-Call (“DNC”) Registers for facsimile messages, short messages and pre-recorded telephone messages under the Unsolicited Electronic Messages Ordinance (“UEMO”). Commercial electronic messages (“CEMs”) must not be sent to registered numbers unless the senders have obtained consent from the registered users. By March 2018, more than 2.8 million numbers were registered with these three DNC Registers. Apart from not sending CEMs to the registered users of the DNC Registers, senders of CEMs are also required under the UEMO to comply with a number of rules. For example, they must provide the recipients with their contact information and an “unsubscribe facility” in their CEMs so that the recipients can approach the senders concerned and unsubscribe from receiving their CEMs.

In 2017/18, a total of 677 reports in relation to suspected contraventions of the UEMO were received, a reduction of about 16% from that of the previous year. We will continue to monitor the compliance situation on various platforms and streamline the procedures for more effective enforcement.

Enforcement

If the number of reports received against a sender is below a certain threshold, we will issue an advisory letter reminding the sender to observe the requirements under the UEMO. If the number of reports received against a sender exceeds the threshold, or if we continue to receive reports against the same sender after the issuance of an advisory letter, we will conduct a formal investigation and may issue a warning letter to that sender. In 2017/18, a total of 198 advisory letters and 41 warning letters were issued.

In the event of repeated contraventions by the senders of CEMs, we may issue enforcement notices in accordance with section 38 of the UEMO, directing the senders to take steps to remedy the contraventions. Anyone who fails to comply with the enforcement notice may be liable to a fine up to $100,000 on first conviction.

Consumer Education Programmes

To sustain our effort in enhancing public awareness of smart use of communications services, we organised the annual Consumer Education Campaign from August 2017 to March 2018. During the Campaign, a total of six roving exhibitions were held in different districts across the territory to disseminate useful consumer messages through informative display panels, interesting games and short videos. Four public seminars were organised in collaboration with an industry association to educate the public on the safe use of communications services. In order to reach different community groups, 17 mini exhibitions were held at public libraries and schools, and 15 community talks were held at social service centres and elderly centres. In view of the growing public concern over radiation safety of radio base stations for mobile services, three large-scale community talks were held from January to March 2018. Drama performances were staged at 28 primary and secondary schools to educate students on proper use of smartphones. Other activities, including the publication of a series of printed advertorials in the form of comic strips and a Facebook Post Creation Competition, were organised to maximise the exposure of our educational messages. To further facilitate our communication with the public, updated consumer messages and first-hand information about the programmes and activities of the Consumer Education Campaign were published regularly on the Facebook Fan page “Communication Master • OFCA”.