Chapter 5 Facilitating Market Competition and Strengthening Consumer Protection
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. The competition provisions in the BO and TO were repealed simultaneously subject to transitional arrangements when the Competition Ordinance commenced full operation on 14 December 2015.
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 2016 to 31 March 2017, a total of 74 complaints and/or enquiries were received under the Competition Ordinance, with 72 cases closed without the need for further actions and two cases under processing. During the year, we also assisted the CA in reviewing one transaction under the merger rule of the Competition Ordinance, and no further action was considered necessary in respect of the transaction.
Following the ruling of the Court of First Instance on TVB’s judicial review 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 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 2016 to 31 March 2017, OFCA handled a total of 457 complaints under the TDO. Of these cases, 373 were closed due to insufficient evidence to suspect/establish a contravention, or because they fell outside the scope of the TDO; 16 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 68 cases were under processing at various stages.
Section 7M of the TO, which prohibited misleading or deceptive conduct by telecommunications licensees, was repealed upon the commencement of the fair trading sections of the TDO on 19 July 2013. As a transitional arrangement, a licensee engaged in misleading or deceptive conduct that took place before 19 July 2013 would continue to be regulated under section 7M of the TO. In this regard, OFCA assisted the CA in handling two complaint cases under section 7M of the TO from 1 April 2016 to 31 March 2017. No case of infringement was found.
Enforcement of the Unsolicited Electronic Messages Ordinance (“UEMO”)
We have established three Do-Not-Call (“DNC”) Registers for facsimile messages, short messages and pre-recorded telephone messages under the UEMO. Commercial electronic messages (“CEMs”) must not be sent to registered numbers unless the senders have obtained consent from the registered users. By March 2017, 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 sending 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 sender concerned and unsubscribe from receiving their CEMs.
In 2016/17, a total of 803 reports in relation to suspected contraventions of UEMO were received, a reduction of about 53% 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.
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 2016/17, a total of 244 advisory letters and 37 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 of up to HK$100,000 on the first conviction. In 2016/17, a commercial facsimile sender was convicted by the Magistrates’ Court of contravention of the enforcement notice served on him for sending CEMs in contravention of the UEMO.
Consumer Education Programmes
The annual Consumer Education Campaign (“the Campaign”) continued to be held between August 2016 and May 2017 under the theme “Smart Use of Communications Services”. Twelve roving exhibitions were held in different districts across the territory to convey various consumer messages through informative display panels, interesting games and family activities. A number of talks about smart use of mobile data services and protection of data in mobile phones were held during the Campaign period, including four public seminars organised in collaboration with an industry body, 12 community talks targeting those who are not well-versed with new technologies and mobile devices, and eight school talks tailored for primary and secondary students. In addition, 31 drama performances cum mini exhibitions were staged in primary and secondary schools for promoting our consumer messages. A series of printed advertorials in the form of comic strips and a series of magazine advertorials were also published to maximise the exposure of our educational messages.
To further facilitate our communication with the public, a new Facebook Fan page named “Communication Master • OFCA” was launched in November 2016. Updated consumer messages and first-hand information about the programmes and activities of our annual consumer education campaign were publicised regularly through this social media channel. In addition, an educational platform “Learning Corner”, which provides online learning resources like comic strips, videos and worksheets on various consumer messages which target primary and secondary students, is available on the desktop version of the Fan Page.