The Competition Ordinance (Cap. 619) (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 2021 to 31 March 2022, a total of 20 complaints and enquiries were received under the CO, with 19 cases closed without the need for further action and one case is under processing.
During the year, OFCA also assisted the CA in reviewing three transactions under the merger rule of the CO, and no further action was considered necessary in respect of the transactions.
The fair trading sections of the Trade Descriptions Ordinance (Cap. 362) (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 regarding the commercial practices of licensees under the TO and the Broadcasting Ordinance (Cap. 562) 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 2021 to 31 March 2022, OFCA handled a total of 317 complaints under the TDO, of which 257 were closed due to insufficient evidence to establish a contravention or because they fell outside the scope of the TDO; one was closed with the issue of a warning letter to the licensee concerned; eight 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 51 were under processing.
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 (Cap. 593) (UEMO). Commercial electronic messages (CEMs) must not be sent to registered telephone numbers unless the senders have obtained consent from the registered users. As of March 2022, 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 and unsubscribe from receiving their CEMs.
In 2021/22, OFCA received 520 reports regarding suspected contraventions of the UEMO, a reduction of about 8% from the previous year. A majority of these reports were related to short messages, pre-recorded telephone 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.
For cases where 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. As regards cases where 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 formal investigation and may issue warning letter to that sender. In 2021/22, a total of 69 advisory letters and 17 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.
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 for addressing 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 representing the industry. The CCSS aims to help resolve billing disputes in deadlock between telecommunications service providers and their customers through 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 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 introduce new measures.
Since December 2010, OFCA has been providing a broadband performance test system enabling 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 enhance its capability and performance. Currently, it supports speed tests of up to 10 Gbps for desktop and notebook computers and up to 3 Gbps for iOS-based and Android-based mobile devices. From service launch until June 2022, more than 113 million broadband performance tests were conducted via the system.
OFCA continued its publicity effort in enhancing public awareness of smart use of communications services during the year. Under the annual Consumer Education Campaign, which was held from August 2021 to March 2022, various consumer messages were conveyed to the public through an array of programmes and activities, such as roving exhibitions and community talks. The Learning Corner, a newly designed online portal, was also launched in April 2022 to provide primary and secondary students with educational messages on how to use communications services smartly. Learning resources, including short videos, comic strips, quizzes and worksheets are available at the online portal for the use of schools and students. In addition, two new TV APIs with the themes of “Parental Guidance and Family Viewing Hours” and “Use Telecoms Services Smartly. Stay Vigilant against Fraudulent Calls” were launched in August 2021.
In order to enhance public awareness of the “Subsidy Scheme for Encouraging the Early Deployment of 5G” and tremendous potentials of 5G applications, a series of publicity programmes, including advertisements on Facebook, Google and various IT websites were launched during the year. In collaboration with the grantees of the scheme, three short videos were also produced and launched to highlight how the 5G technology could be used to improve business operations and bring benefits to the society as a whole.
During the year, OFCA continued to publicise the migration of six DTT programme channels to new transmitting frequencies through publication of press releases and consumer alerts, placement of advertisements on OFCA’s social media platforms and in free newspapers, and broadcast of TV and radio APIs as well as distribution of posters and flyers to the public. The migration was successfully completed on 1 December 2021.