LCQ18: Regulatory regime for mobile television services
Following is a question by the Hon Charles Mok and a written reply by the Secretary for Commerce and Economic Development, Mr Gregory So, at the Legislative Council meeting today (March 26):
The Hong Kong Mobile Television Network Limited (HKMTV) recently planned to change the transmission standard of its mobile television services from China Mobile Multimedia Broadcasting (CMMB) to Digital Terrestrial Multimedia Broadcasting (DTMB). It has been reported that the Office of the Communications Authority (OFCA) sent a letter to HKMTV on March 11, pointing out that the consequence of the change would render HKMTV's mobile television service available for reception by an audience of more than 5 000 specified premises in Hong Kong, and the company, therefore, was required to have a domestic free television programme service licence (free TV licence) under the Broadcasting Ordinance (Cap. 562). In this connection, will the Government inform this Council:
(1) whether a mobile television service provider is required to have a free TV licence if it provides mobile television service, received through mobile devices, to an audience of more than 5 000 specified premises; whether the existing legislation stipulates the upper limits on the number of viewers of mobile television services, as well as on the type and number of reception devices in the specified premises concerned; if so, of the details;
(2) whether a mobile television service provider is required to have a free TV licence when an audience of more than 5 000 specified premises receives mobile television service through mobile devices and transmits the programmes to large displays (including but not limited to television screens) for viewing; if so, of the details;
(3) whether the licensing requirements on mobile television services stipulate that the licensee must use CMMB to provide mobile television service; if so, of the details; whether it knows if HKMTV, during the period when it was owned by China Mobile Hong Kong Corporation Limited, provided mobile television service to an audience of more than 5 000 specified premises; if HKMTV did, whether the authorities have assessed if HKMTV had then violated the Broadcasting Ordinance;
(4) whether it knows the justifications for OFCA stating that HKMTV must have a free TV licence before it may use DTMB to broadcast mobile television service; whether OFCA can set out clearly the transmission standards, other than CMMB, that HKMTV may use to provide mobile television service without a free TV licence; whether it has assessed if OFCA's remarks that HKMTV may not use DTMB to provide mobile television service have violated the authorities' technology-neutral principle; if it has, of the details; if not, the reasons for that;
(5) according to the Framework for Development of Broadcast-type Mobile Television Services in Hong Kong published by the Commerce and Economic Development Bureau in 2010, the authorities "adopt a market-led and technology-neutral approach by leaving the market to select the technical standards for broadcast-type mobile television services", and the Bureau also pointed out that "[r]egarding the regulation of mobile television programming, the content of mobile television, either local broadcast-type or streaming-type, should be subject to regulation by general laws but not the Broadcasting Ordinance. To enable self-regulation, the industry will be required to develop codes of practice on provision of mobile television services before service commencement. The codes should include, among others, the requirement of conditional access with a view to protecting public morals and children", whether the aforesaid stance of the authorities has been changed; if so, of the details and the reasons for that;
(6) whether it knows if the reason for OFCA sending the letter to HKMTV was that OFCA received a relevant complaint, or was taking regulatory actions under the Broadcasting Ordinance, or was responding to the company's enquiries concerning transmission standards; whether OFCA has taken relevant legal actions after sending the letter; if OFCA has, of the details; and
(7) given that the authorities have indicated that they will conduct a review of the existing regulatory regime and amend the legislation in order to update and rationalise the Telecommunications Ordinance (Cap. 106) and the Broadcasting Ordinance, of the specific timetable of the authorities for amending the relevant legislation?
In December 2008, the Government promulgated the "Framework for Development of Broadcast-type Mobile TV Services in Hong Kong" (the Policy Framework) after two rounds of public consultation conducted in 2007 and 2008 respectively. As mentioned in the relevant Legislative Council (LegCo) Brief, "mobile television (mobile TV) services" generally refers to "the provision of television programme services by wireless transmission of audio-visual content for reception by mobile phones or other portable devices." Paragraph 14 of the said LegCo Brief clearly states that "in relation to programming, the Broadcasting Ordinance (Cap. 562) currently does not regulate television programme services for mobile reception (i.e. reception on the move not related to any specified premises) in Hong Kong unless the services are not primarily targeting Hong Kong."
In short, the Government's policy on "mobile TV services" has always been consistent with the legislation. Under the Broadcasting Ordinance (Cap. 562) (BO), domestic television programme services for reception by mobile devices not related to any specified premises are not required to obtain a licence. Such services include domestic "broadcast-type mobile TV services" transmitted via radio frequency spectrum for "reception on the move not related to any specified premises", and "streaming-type mobile TV services" provided over the platform of mobile network operators or the Internet.
Under the BO, any person who provides a domestic free television programme (free TV) service or a domestic pay television programme (pay TV) service without a licence commits an offence. As an independent regulator, the Communications Authority (CA) enforces relevant statutory requirements in accordance with the BO and its technical and factual judgement.
My reply to the various parts of the question is as follows:
(1) The BO has a clear definition of "free TV service". If any television programme service is intended or available for reception by an audience of more than 5 000 specified premises free of charge in Hong Kong and primarily targets Hong Kong, it will fall within the definition of a "free TV service" under the BO. In other words, under the laws and the Government's policy, a relevant licence under the BO would be required for any domestic mobile TV service which not only allows reception by mobile phones or other portable devices, but is also intended or available for reception by an audience of more than 5 000 specified premises free of charge in Hong Kong.
Under the Telecommunications Ordinance (Cap. 106) (TO), an operator of the network used to transmit mobile TV services via the assigned spectrum (i.e, 678MHz – 686MHz)(the Spectrum) is required to obtain a unified carrier licence. The unified carrier licence provides that the licensee can transmit mobile TV programmes via the Spectrum for mobile reception by the audience through portable devices. The licence does not prohibit signals of mobile TV services from covering indoor areas, nor impose any limitation on the size of the audience and number of portable devices receiving the services.
(2) As to whether a domestic television programme service is related to the "specified premises" and hence requires a licence under the BO, it is a matter of the CA's technical and factual judgement. According to the CA, generally speaking, if a person living in the specified premises receives broadcast-type mobile TV services by a portable device, that person is not considered an audience of the specified premises under the BO.
(3) The unified carrier licence does not stipulate that the licensee must use China Mobile Multimedia Broadcasting (CMMB) standard to provide its service. The licensee is free to select a widely recognised technical standard for its broadcast-type mobile TV service. However, it is obligatory for the licensee to ensure that the service so provided complies with all statutory and licensing requirements, including obtaining all necessary licences under the laws.
The former Telecommunications Authority issued a unified carrier licence in August 2010 to the successful bidder of the Spectrum (i.e. China Mobile Hong Kong Corporation Limited (CMHKCL), which has now been renamed as Hong Kong Mobile Television Network Limited (HKMTV)). As informed by the CA, according to its information, signals transmitted by CMMB standard adopted by the CMHKCL for broadcast-type mobile TV service are not intended or available for reception by the television sets in regular households. Therefore, the CA considered that there is no evidence to indicate the CMHKCL had provided any free TV services or pay TV services as defined under the BO. We have also noted that China Mobile Hong Kong Company Limited, the parent company of the CMHKCL before acquisition, expressly stated to the media recently that it had been aware of the licensing requirements on television services involving "specified premises" under the BO back at the time when it applied for providing the broadcast-type mobile TV service.
(4) The HKMTV plans to switch to DTMB, the same transmission standard of digital terrestrial television (DTT) currently adopted by the two free TV broadcasters, for the transmission of its broadcast-type mobile TV service. The CA considers that the consequence of adoption of this standard will most likely lead to a situation where the programme services will be available for reception by a number of audience of specified premises exceeding the threshold necessary for obtaining a free TV or pay TV licence. In such case, the HKMTV is required to obtain the relevant licence under the BO prior to provision of its service.
Under the existing policy, there is no restriction on the technical standard to be used for the transmission of television services. Under the technology-neutral principle, service providers are free to adopt their own transmission means to deliver their television services, but they still have to make sure that their services comply with all the requirements under the laws and relevant licences. In this regard, the broadcast-type mobile TV service is no exception. While the market is free to choose any internationally-recognised technical standards, television service providers must observe all requirements under the law, including obtaining the necessary licences as legally required. We see no conflict between the technology-neutral principle and observing the law. If any service provider who, through adoption of a transmission standard, essentially provides both the broadcast-type mobile TV service and free TV or pay TV services at the same time, it must obtain a broadcasting licence under the BO in addition to a unified carrier licence under the TO. Meanwhile, we understand from the Office of the Communications Authority (OFCA) that there are currently different possible means or other transmission standards that allow a service provider to continue the provision of broadcast-type mobile TV service in accordance with the laws even without obtaining a free TV or pay TV licence under the BO.
(5) The policy on mobile TV services is forward-looking. As mentioned above, the technology-neutral principle is enshrined in the Policy Framework. There is no restriction on a mobile TV service provider in its choice of transmission standards for service delivery, subject to that the provider has to ensure that its service complies with all the requirements under the laws and relevant licences. Considering that the broadcast-type mobile TV service was then a nascent and relatively personalised service, the Government decided in 2008 not to amend to BO to cover the broadcast-type mobile TV service not involving "specified premises", thereby subjecting the content of such service to a light-handed approach. The aforesaid policy stance remains unchanged.
(6) We understand that since the CMHKCL was acquired on December 20 last year, the OFCA has been in close contact with the Hong Kong Television Network Limited and the HKMTV. The OFCA was notified on January 23, 2014 that the HKMTV was prepared to change the transmission standard for the provision of its broadcast-type mobile TV service to DTMB standard, which is the same standard adopted by the two incumbent free TV licensees for the provision of DTT services. The OFCA considered that it would be most likely that the adoption of such a transmission standard would lead to a situation where the programme service signals of the HKMTV would be "available for reception by audience of specified premises", thus effectively making it a "free TV" or "pay TV" service (depending on whether the channels require payment of a subscription). In this connection, the OFCA held two meetings with the representatives from the HKMTV on January 24, 2014, and drew the HKMTV's attention at the meetings to the relevant requirements under the BO. Before that, the OFCA had not received any related complaint or enquiry from any other persons or organisations.
(7) We plan to brief the Legislative Council Panel on Information Technology and Broadcasting within this legislative year on the application for creation of two supernumerary directorate posts to conduct the legislative review, and will seek funding approval from the Finance Committee. Specific work relating to the legislative review will commence after the creation of the posts.
Wednesday, March 26, 2014