Handling of and Investigations into Competition Complaints in the Telecommunications and Broadcasting Sectors, and Merger & Acquisition Cases in the Telecommunications Sector
The Competition Ordinance (CO) provides for a cross-sectoral competition law prohibiting anti-competitive conduct in all sectors. Under the CO, the CA is conferred concurrent jurisdiction with the Competition Commission to enforce
the CO 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 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 2019 to 31 March 2020, a total of 23 complaints and enquiries were received under the CO, with 22 cases closed without the need for further actions and one case under processing.
During the year, OFCA also assisted the CA in reviewing one transaction under the merger rule of the CO, and no further action was considered necessary in respect of the transactions.
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 a memorandum of understanding to coordinate 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 regarding the operation of the fair trading sections.
From 1 April 2019 to 31 March 2020, OFCA handled a total of 288 complaints under the TDO. Of these cases, 243 were closed due to insufficient evidence to establish a contravention, or because they fell outside the scope of the
TDO; 18 cases were closed after the CA issued advisory letters to the licensees concerned to bring the subject matter to their attention 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 27 cases were under processing at various stages.
Enforcement of the Unsolicited Electronic Messages Ordinance
Do-Not-Call Registers
The CA has established three Do-Not-Call (DNC) Registers, for facsimile messages, short messages and pre-recorded telephone messages respectively, under the Unsolicited Electronic Messages Ordinance (UEMO). Commercial electronic
messages (CEMs) must not be sent to registered telephone numbers unless the senders have obtained consents from the registered users. By March 2020, more than 2.6 million telephone numbers were registered with these three DNC
Registers. Apart from not sending CEMs to the registered telephone numbers on 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 2019/20, OFCA received 598 reports in relation to suspected contraventions of the UEMO, a reduction of about 6% from the previous year. A majority of these 598 reports were related to short messages and email messages. OFCA
will continue to monitor the compliance situation on various messages and platforms and streamline the procedures for more effective enforcement.
Enforcement
If the number of reports received against a sender is below a certain threshold, OFCA 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 OFCA continues to receive reports against the same sender after the issuance of an advisory letter, OFCA will conduct a formal investigation and may issue a warning letter to that sender. In 2019/20,
a total of 63 advisory letters and 30 warning letters were issued.
In the event of repeated contraventions by the senders of CEMs, the CA 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 an enforcement notice may be liable to a fine of up to HK$100,000 on the first conviction.
Continued Efforts to Strengthen Consumer Protection in the Use of Telecommunications Services
Self-regulatory Measures Voluntarily Implemented by the Industry
In order to safeguard consumer interests in the use of telecommunications services, OFCA takes proactive actions to implement various consumer protection measures and works with the industry to draw up and implement self-regulatory
measures to address new consumer issues that may arise from time to time.
These measures include the voluntary Customer Complaint Settlement Scheme (CCSS) administered by the Communications Association of Hong Kong, an industry association. The CCSS aims to help resolve billing disputes in deadlocks
between telecommunications service providers and their customers by means of mediation.
Other self-regulatory measures voluntarily implemented by the industry include the promulgation of the Code of Practice for Telecommunications Service Contracts to improve the clarity of provisions in the telecommunications service
contracts, as well as the Code for the Provision of Chargeable Mobile Content Services to govern the practices of third-party content service providers.
Some other examples include the implementation of mobile bill shock preventive measures, promulgation of a set of mandatory guidelines governing the implementation of fair usage policy by telecommunications service providers, as
well as publication on OFCA’s website details of the arrangements adopted by major residential broadband service providers to handle service termination requests from consumers.
OFCA will continue to monitor the implementation and effectiveness of the various consumer protection measures adopted and where necessary engage the industry to seek further improvement of the existing measures or to introduce
new measures.
Enhancement of the Broadband Performance Test System
Since December 2010, OFCA has been providing a broadband performance test system to enable broadband service users to measure the performance of their broadband connections, including download and upload speeds, network latency,
packet loss and jitter. Apart from users of desktop and notebook computers, users of smart phones and tablets running iOS and Android operating systems may also make use of the test system.
From time to time, OFCA reviews and upgrades the test system to further enhance its capability and performance. Currently, it offers desktop and notebook computer users and users of iOS-based and Android-based mobile devices speed
tests of up to 5 000 Mbps and 1 000 Mbps respectively. From service launch to March 2020, more than 95 million tests were performed with use of the system.
