Complaints about unauthorised discounts offered by PCCW-HKT Telephone Limited to business customers

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1 CDN0195 Complaints about unauthorised discounts offered by PCCW-HKT Telephone Limited to business customers Complaint against: Issue: Relevant Instruments: PCCW-HKT Telephone Limited ( PCCW-HKTC ) Allegations that PCCW-HKTC offered unauthorised discounts on business direct exchange line ( BDEL ) telecommunications services to business customers. General Condition 20(4) of PCCW-HKTC s Fixed Telecommunications Network Services ( FTNS ) Licence and/or section 7L of the Telecommunications Ordinance (Chapter 106) ( the Ordinance ). Case Opened: August 2003 Case Closed: May 2005 Decision: No breach of GC20(4) or section 7L Case Reference: T156/03 Introduction 1. Prior to the recent removal of the ex ante pricing regulation that had applied to PCCW-HKTC following deregulation of the Hong Kong telecommunications industry in 1995, the Office of the Telecommunications Authority ( OFTA ) was actively monitoring PCCW-HKTC s compliance with its obligation under General Condition 20(4) ( GC20(4) ) of its original FTNS licence. GC20(4), which is more fully described below, prohibited PCCW-HKTC in some circumstances from discounting its telecommunications services below a level approved by the Telecommunications Authority ( TA ). 2. A full discussion of the background to and implications of the removal of GC20(4) as well as other elements of the previous ex ante regime is provided in the TA s statement of 13 January 2005 entitled Implementation of ex post Regulation of the Tariffs of PCCW-HKT Telephone Limited under a New Fixed Carrier Licence. 3. In the event of a low pricing allegation, the TA also considered whether the facts could individually or collectively constitute a breach of section 7L of the Ordinance, which prohibits a licensee in a dominant position in a market from abusing that position, which includes predatory pricing. 1

2 4. Following PCCW-HKTC s surrender of its original FTNS licence, and its taking up of a new Fixed Carrier licence without GC20(4) in it, OFTA has now concluded inquiries into the outstanding complaints against PCCW-HKTC about unauthorised discounting behaviour under its previous FTNS licence. As a record of those inquiries, this case summary briefly examines the cases of alleged breaches of GC20(4) and section 7L that were fully investigated after August It also highlights related developments that confirm the TA s view that the monitoring of PCCW-HKTC s pricing conduct under this provision has not identified any breaches of the law as it stood. 5. This case summary also documents some of the difficulties faced by the TA in conducting competition law investigations generally. In the cases investigated here, both the complainants and PCCW-HKTC were unable to provide sufficient information to enable OFTA to fully investigate the allegations made or were unco-operative to the point of requiring the TA to exercise his formal information gathering powers. Discussions with various parties, including PCCW-HKTC, during these investigations have contributed to the establishment of more effective information exchange mechanisms under PCCW-HKTC s new Fixed Carrier licence. The Complaints 6. Between August 2003 and January 2005, OFTA received approximately 140 complaints from two telecommunications operators concerning alleged unauthorised discounts offered by PCCW-HKTC to businesses in Hong Kong. These complaints involved allegations that a competitor sought to win (or retain) a business customer in competition with an offer made by PCCW-HKTC. Upon comparing PCCW-HKTC s offer to its published tariffs, the competitor would conclude (and allege to the TA) that the offer constituted an unauthorised and anti-competitive discount off the relevant tariff. 7. Of all the complaints received by the TA, most of which concerned existing PCCW-HKTC business customers who either denied any of the alleged offers had been made to them or refused to have their identities disclosed to PCCW-HKTC hence making further investigation impossible, only three complaints could be fully investigated and these are the factual focus of this case summary. These complaints can be summarized as follows: Complaint 1 This business customer ( Customer 1 ) stated that one of its directors was approached by a PCCW-HKTC account manager and was subsequently telephoned by another account manager, who offered a number of discounts on Customer 1 s IDD and broadband services, as well as an approved discount on fixed-line services. These offers were allegedly conditional on Customer 1 switching all its BDEL services to PCCW-HKTC. The offer was not accepted because the relevant PCCW- HKTC account manager allegedly refused to put the offer in writing. 2

3 Complaint 2 Complaint 3 This business customer ( Customer 2 ) stated that a PCCW-HKTC account manager offered to match a competitor s discounted rate for the provision of telecommunications services. With reference to a table comparing the different rates of the two service providers, the account manager initially offered Customer 2 an annual rebate of HK$37,011.60, which it was claimed would be set against IDD and broadband service charges. This rebate was subsequently increased to HK$48, when it was made known that the competitor in question had offered further discounts. PCCW-HKTC s offer was allegedly conditional on Customer 2 maintaining all its fixed-line services with PCCW-HKTC. This business customer ( Customer 3 ) allegedly told another telecommunications service provider that PCCW-HKTC had offered it a monthly rebate of HK$3,000 on condition that it continue to use PCCW- HKTC s fixed-line telephone services. While this rebate appeared on Customer 3 s telephone bill as a discount against IDD charges, the TA was provided with information suggesting that the original service charges were less than the discounts themselves suggesting that the HK$3,000 rebate was in fact intended to be set against Customer 3 s fixed-line charges, which were included in the bill and which were greater than the relevant rebate amount. TA s Investigation 8. According to the complainants, the conduct of PCCW-HKTC in each of the above instances raised issues under GC20(4) of PCCW-HKTC s FTNS licence and section 7L of the Ordinance. These prohibitions, which only apply to dominant telecommunications services licensees, can be summarised as follows: GC20(4) prohibits a licensee from offering any discounts to its published tariffs (other than those approved by the TA and published together with the tariffs) if, in the TA s opinion, the licensee is in a dominant position in any market for or which includes the telecommunications service to which the tariff in question relates. Section 7L of the Ordinance prohibits a licensee in a dominant position in a telecommunications market from abusing its position. An abuse of a dominant position will be presumed where such a licensee engages in conduct that has the purpose or effect of preventing or substantially restricting competition in a telecommunications market. 9. In accordance with OFTA s guidelines entitled How Complaints Related to Sections 7K to 7N of the Telecommunications Ordinance are Handled by OFTA, as published on 29 August 2003, the TA considered each of the above complaints to determine whether or not to pursue a preliminary investigation into the allegations made. In doing so, he formed the opinion that the matters complained of were not frivolous and that they raised issues within his jurisdiction. 3

4 PCCW-HKTC s Submissions Complaint In relation to the facts of Complaint 1, PCCW-HKTC denied authorising any of its employees to offer discounts to any customer on condition that the customer switch all of its local fixed-line services to PCCW-HKTC. PCCW-HKTC was nevertheless able to confirm that a PCCW-IMS Ltd ( PCCW-IMS ) account manager had spoken with a representative of Customer 1 on the telephone during the relevant period. According to PCCW-HKTC, during that conversation the account manager had indeed offered: Complaint 2 a 50% reduction on [Customer 1 s] IDD call plan and a 50% reduction on [Customer 1 s] Broadband services with the hopes that [Customer 1] might subscribe to PCCW-HKT[C] s BDEL services. 11. PCCW-HKTC denied having provided a prohibited discount to Customer 2 in order to retain its business hunting lines or to solicit the port-back of lines from Customer 2 s current provider. It then argued that the tables provided merely set out the net cost of the relevant customer s overall relationship with PCCW-HKT[C] (taken as a whole) and compares this with the hypothetical cost of that customer s relationship with another provider of telecommunications services. 12. PCCW-HKTC claimed that this scenario did not of itself provide any evidence of a breach of GC20(4). Moreover, it argued that PCCW-HKTC does from time to time enter into commercially negotiated advertising agreements with third parties and that it could not see how a payment made by PCCW-HKTC to a business in this context could amount to a discount on its services. Complaint While the offer in this instance was not in writing, PCCW-HKTC claimed that its account manager advised Customer 3 that the rebate was based on the customers IDD usage. The account manager did not, according to PCCW-HKTC, indicate that the rebate was conditional on Customer 3 continuing to use PCCW-HKTC s fixed-line services. Nor did he state that the rebate could be used to settle fixed-line charges. 14. Subsequently, following the TA s proposal to issue a formal direction to PCCW- HKTC to comply with his information requests, PCCW-HKTC stated that it did not have copies of the original bills provided to Customer 3. This meant that the TA could not assess the appropriateness of the claimed level of discounts or the claimed basis for the offered rebate. 4

5 TA s Findings 15. From a purely evidentiary perspective, the TA was unable to determine conclusively the facts of any of the above cases. On the one hand the statements provided by the businesses concerned appeared to be reliable, but on the other the discounts offered were often presented in the context of a bundled package of telecommunications services such that only by assumption could it be determined that a particular discount related to the BDEL service included in the bundle. 16. A lack of written evidence in the form of offers, contracts and even bills was another issue. While not necessarily an obstacle to an adverse finding in appropriate cases, reliance on oral testimony without any corroborating evidence requires careful consideration. In the three cases investigated here, there were a number of holes in the evidence against PCCW-HKTC, some of which were the result of PCCW-HKTC s own incomplete records. 17. For Complaint 1, there was no written offer nor any acceptance of any offer (and hence no contract or billing documentation). While the distinction between a hope that PCCW-HKTC s BDEL service would be taken up by Customer 1 and the imposition of this requirement as a condition of the offer may be illusory, it nevertheless adds further doubt to the case against PCCW-HKTC. 18. Complaint 2 centres on two computational tables and associated handwritten notes. However, there is unresolvable doubt over who wrote what and the significance of particular phrases in terms of strict legal analysis. The alleged discounts involved are not trivial, yet very little information could be obtained about how they were calculated. 19. Concerning Complaint 3, neither PCCW-HKTC nor Customer 3 could provide OFTA with any records of Customer 3 s past IDD usage on which the given discounts were claimed to be based. Such records could have quickly determined the reasonableness of the discounts. On the other hand, they could have confirmed a lack of justification. Customer 3 was also reluctant to assist with OFTA s inquiries at various points during the investigation. 20. The fact that there was no evidence that the alleged unlawful behaviour investigated by the TA in the above matters constituted anything other than isolated incidents also requires comment. While the complainants encouraged the TA to investigate the allegations raised, they were on the whole unable to provide anything more than the name and contact number of a particular business that had claimed to have received a particular offer from PCCW-HKTC. In many instances, the business was uncooperative and some times denied ever consenting to their details being given to the TA contrary to the claims made by the complainants. 21. It needs to be borne in mind that some businesses pretend to have offers from a service provider, like PCCW-HKTC, to strengthen their bargaining position with other service providers, such as the complainants. There is also an incentive on the complainants (or more particularly their sales staff) to perpetuate such inventions to 5

6 explain why they had to lower their service charges or why they lost a particular client. To the extent that most negotiations are oral, the precise pricing details of particular offers which can be critical from a legal investigation perspective are seldom as reliable as documented evidence. 22. Most businesses do not want to get involved in investigations into allegations of unauthorised discounting practices. This is because they may fear some form of retribution from the operator under investigation. It could also be that they do not want to surrender the favourable deal they received in the first place. These are perhaps the main reasons why many of the more than 97 per cent of the businesses contacted during this investigation refused to assist with OFTA s inquiries or provided no evidence of ever having received an unlawful offer from PCCW-HKTC. 23. In the future, the TA will expect complainants particularly those that are industry participants to bear a substantial burden when providing information to the TA for investigation. Bare claims of unfairness or anti-competitive behaviour will not be investigated without some compelling evidence justifying the TA s commitment of resources. This has an obvious practical aspect and also reflects a concern that some operators may seek to use the TA merely to achieve their own commercial objectives. 24. The TA reiterates that PCCW-HKTC was partly responsible for the lack of information available to the TA during the course of this investigation. In some cases, its records were incomplete, which reflected poor work practices rather than conduct directed at thwarting the TA s inquiries. In other instances, however, PCCW-HKTC did refuse to co-operate with the TA to resolve key evidentiary issues. The company claimed that the TA needed to prove a case against it before information would be provided, but that stance of course fails to appreciate the TA s responsibility to first obtain information to determine whether or not such a case exists. 25. As noted, recent discussions with PCCW-HKTC in the context of its decision to replace its FTNS licence with a new Fixed Carrier licence, indicate that greater cooperation in relation to the provision of information can be expected in the future. If this does not eventuate, the TA will not hesitate to use the formal information gathering powers available under section 7I of the Ordinance to ensure there is sufficient information to draw reasonable conclusions on evidentiary matters. 26. In the present cases, there was ultimately insufficient evidence to establish the kind of market-wide detriment necessary to trigger GC20(4) and section 7L. While the complainants claimed otherwise, the relatively small scale and ad hoc nature of the alleged breaches lacked the degree of systematisation and senior management involvement expected in abuse of dominance cases. While an argument may be made that the present cases are indicative of a wider problem, in the TA s opinion such an argument fails against the balance of probabilities test that applies in this instance. 27. It is not necessary for the TA to form a concluded view on these factual issues given the related developments discussed below. Nevertheless, there is considerable 6

7 doubt that any of the three cases investigated here which reflect the strongest possible cases identified during the course of an 18-month monitoring initiative indicate a breach of either GC20(4) or section 7L. Related Developments 28. The fact that GC20(4) now no longer applies to PCCW-HKTC renders the TA s investigation into the above matters somewhat academic in the context of the present regulatory regime. Had there been more evidence of damage to the competitive process in a relevant market, section 7L, which still applies today, could have been triggered. As it is, insufficient evidence of this kind renders this section inapplicable and, in terms of competition policy, undermines the relevance of any potential action the TA may have taken under GC20(4). TA s Conclusion 29. By a combination of insufficient primary evidence and the removal of GC20(4) as part of the regulatory framework, the TA has formed the view that no breach of either GC20(4) or section 7L can or should be established in this matter. 30. In more positive terms, the TA is satisfied that none of the information obtained during the 18-month monitoring initiative summarized above raises sufficient concerns that PCCW-HKTC had acted unlawfully, although the comments noted in relation to the information gathering difficulties encountered during specific investigations are a subject for further consideration. TA s Decision 31. As no breach of GC20(4) or section 7L can be established, this case is now closed. 7

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