INTER-PACIFIC BAR ASSOCIATION CONFERENCE -7 May 2002, HONG KONG INTER-PACIFIC BAR ASSOCIATION CONFERENCE. 3-7 May 2002, HONG KONG

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1 INTER-PACIFIC BAR ASSOCIATION CONFERENCE INTER-PACIFIC BAR ASSOCIATION CONFERENCE -7 May 2002, HONG KONG 3-7 May 2002, HONG KONG InteCOMPETITION LAWS & THEIR IMPACT ON TELECOMMUNICATIONS MERGERS & ACQUISITIONS AND BROADCASTING REGULATION IN THE DIGITAL / INTERNET AGE Address by Mr Anthony S K Wong Director-General of Telecommunications Office of the Telecommunications Authority (OFTA) Hong Kong 4 May 2002

2 Competition Laws and Their Impact on Telecommunications Merger & Acquisition Merger control is one of the important components of most competition law systems Some consolidations may jeopardise the maintenance of effective competition To assess the potential effects of competition of mergers and acquisitions prior to their implementation 2

3 OVERSEAS MERGER REGULATION (Summary) Compulsory Pre-Notification Pre-Notification Threshold HK No (i.e. ex post regime) - Australia No (i.e. ex post regime) - UK No (i.e. ex post regime) - Canada Yes Assets and sales-based EC Yes Turnover-based Competition Test Injunction Powers Divestiture Powers Substantially lessen competition No Yes Substantially lessen competition Yes Yes Maintaining and promoting competition No Yes Prevents or lessens competition substantially Yes Yes Effective competition significantly No Yes Singapore Yes Any change in ownership, shareholding, management Unreasonably restrict competition Yes No US Yes Assets and sales-based Substantially lessen competition Yes Yes 3

4 Competition Laws and Their Impact on Telecommunications Merger & Acquisition Hong Kong: The Recent Proposal Background: Government Policy: To promote fair and effective competition in the telecom market and to safeguard the level of competition for consumers benefit Present Situation: Regulation of mergers and acquisitions in the telecom market is performed by the TA through licence conditions; whilst many licensees decide to approach the TA for advice Problems: Uncertainty and lack of clarity 4

5 Competition Laws and Their Impact on Telecommunications Merger & Acquisition Hong Kong: The Recent Proposal The Proposal: To amend the Telecommunications Ordinance (Cap.106) introducing a set of regulatory provisions for merger and acquisitions in the telecom market. Objectives of the Proposal: To promote fair and effective competition and to protect consumers interests To provide a transparent and efficient regulatory regime governing merger and acquisition activities To assist the industry in making informed decision as well as speeding up the processes for regulatory approval 5

6 Competition Laws and Their Impact on Telecommunications Merger & Acquisition Main Features of the Proposal Where the TA is of the opinion that a change in ownership or control over a carrier licensee has, or likely to have the effect of substantially lessening competition in the telecommunications market, the carrier licensee shall take such action as the TA considers necessary to eliminate such anti-competitive effect E.g. procuring modifications to its ownership / control Sanction, e.g. financial penalty, suspension / cancellation of licence may be imposed for failure to take the measures as directed 6

7 Competition Laws and Their Impact on Telecommunications Merger & Acquisition Main Features of the Proposal Alternative Mechanism: Carrier Licensees may seek TA s prior consent on voluntary basis Ex ante vs Ex post Regulation A Hybrid Approach: No Mandatory pre-notification / pre-approval; an ex post regulatory regime with a channel for voluntary prior consent will be adopted 7

8 Competition Laws and Their Impact on Telecommunications Merger & Acquisition Main Features of the Proposal TA will issue guidelines setting out the criteria he will consider in determining whether a change / proposed change has / is likely to have an anti-competitive effect. Consultation will be conducted before issuing the guidelines. The proposal will only apply to carrier licensees. A decision / direction made under the proposed provision will be subject to appeal to the Telecommunications (Competition Provisions) Appeal Board. 8

9 MARKETING DEFINITION MARKETING SHARE AND CONCENTRATION (i) Less than 15 % market or (ii) Less than 40% and CR4 less than 75% 40% or more market share; or 15% more and CR4 greater than 75% BARRIERS TO ENTRY High IMPORT COMPETITION Closed VERTICAL INTEGRATION OTHER FACTORS! countervailing power! production efficiencies! industry dynamics High with market power Low Open Low Non-adverse Adverse Likely prevention or substantial restriction of competition Unlikely prevention or substantial restriction of competition 9

10 Competition Laws and Their Impact on Telecommunications Merger & Acquisition Way Ahead Proposed Amendment Bill gazetted 3 May 2002 Bill introduced in Legco and second reading on 15 May 2002 Come into force upon Legco approval TA issues Guideline after consultation 10

11 Broadcasting and Its Regulation in the Digital/Internet Age Change of Technology Early broadcasting services mainly in wireless mode e.g. off-air TV and Radio Cable TV and SMATV later All such technologies limit the number of broadcasters because of the lack of spectrum and significant CAPEX The internet with new technologies such as audio/video streaming and webcasting sets free a new kind of media 11

12 Broadcasting and Its Regulation in the Digital/Internet Age The New Media The Internet could be used for free dissemination of information in any form (text, graphic, static images, moving images, audio, music) Once stored in a web site, the information could be retrieved by anyone through the Internet any time any where in the world With webcasting techniques, many people could get the same information at the same time (near enough real time) 12

13 Broadcasting and Its Regulation in the Digital/Internet Age The New Media This new form of media is inexpensive to set up and has no limit on the number of broadcasters or channels It has a similar nature of service to traditional types of broadcasting, maybe even more powerful It has global coverage automatically A big headache for regulators 13

14 Broadcasting and Its Regulation in the Digital/Internet Age Problems for the Regulators: Most broadcasting legislations are technology specific The Internet does not fall within the definition of broadcasting in many jurisdictions Inexpensive and numerous channels available Extra-territorial operations possible Highly difficult to police 14

15 Broadcasting and Its Regulation in the Digital/Internet Age Regulatory Concerns: Objectionable Contents e.g. Pornography, gambling, drugs, etc. Copyright issues Culture invasion Competition issues - unfair competition Tax evasion 15

16 Broadcasting and Its Regulation in the Digital/Internet Age Regulatory Approaches Make broadcasting legislation technology neutral Regulate the Internet in similar manner as other print media Adapt other relevant laws (e.g. obscenity, gambling) to include similar transactions/publications on the Internet Consider relaxing certain controls on traditional modes of broadcasting to increase their competitiveness International co-operation badly needed 16

17 Broadcasting and Its Regulation in the Digital/Internet Age Hong Kong Experience Broadcasting legislation technology neutral Contents of Internet regulated under Control of Obscene and Indecent Articles Ordinance Current regulatory framework is market specific, e.g. pay TV vs free TV Contents distribution using Internet is currently not regulated under Broadcasting legislation 17

18 Thank You 18

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