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Following is a question by the Hon Ronny Tong and a written reply by the Secretary for Commerce and Economic Development, Mrs Rita Lau, in the Legislative Council today (April 14):
Question:
It has been recently reported that some mobile network users have complained that recently their mobile phones received some unsolicited "tricky short messages" which sought to provide mobile content services to them, and if they did not reply to indicate their refusal to receive such services, the mobile network operators (MNOs) concerned would start charging them service fees, some of which were as high as $24 per message. In this connection, will the Government inform this Council:
(a) whether the Office of the Telecommunications Authority (OFTA) had received complaints related to the aforesaid chargeable short messages last year; if it had, of the number of such complaints, the follow-up actions taken by OFTA and the outcome thereof;
(b) whether it has assessed if the aforesaid charging practice of the MNOs concerned constitutes a breach of the existing provisions in the Unsolicited Electronic Messages Ordinance (Cap. 593); if the assessment outcome indicates that it constitutes a breach, of the details; if not, whether the authorities will consider amending the legislation to step up the regulation of such practice; and
(c) apart from relying on compliance by the industry with the code introduced on January 11 this year, whether OFTA will consider adopting other measures to curb the aforesaid practice?
Reply:
President,
Billing disputes associated with chargeable mobile content services (MCS) delivered through short messaging services (SMS) have been the subject of public concern in recent months. There have been complaints whereby consumers claim that they are not aware that they have registered with a chargeable MCS, that the services would be chargeable, or that messages would be sent to them in a substantial quantity. Some complainants indicate that they have difficulties in terminating the MCS with the content service providers (CSPs).
The Office of the Telecommunications Authority (OFTA) has examined the cases and concluded that the failure to provide clear charging information and relevant service terms and conditions by some CSPs to their customers in their promotional messages or through their concerned websites in the registration process is the main reason which gives rise to the billing disputes in relation to MCS.
With a view to safeguarding consumers' interests and improving the transparency of the charging information of MCS, OFTA has been in discussion with the industry and drew up a "Code for the Provision of Chargeable Mobile Content Services" (the Code). The Code was put into effect by the industry body, Communications Association of Hong Kong (CAHK), on January 11, 2010. The Code requires CSPs, before starting to provide MCS to users, to indicate to them clearly the chargeable nature of the services, provide clear information on all charges, obtain clear consent from users for using the MCS, and set out clear and convenient unsubscription arrangements.
In addition, the Code requires mobile network operators (MNOs) to ensure that any charging dispute in respect of MCS would not affect the normal mobile phone services provided to the concerned subscribers. The Code also sets out the establishment of an Administrative Agency (AA) by the industry to assess the compliance of CSPs with the Code. MNOs have undertaken to enter into contracts only with CSPs which have been positively assessed by the AA, and would cancel the contract with CSPs which are found to contravene the Code and fail to rectify the breaches.
Although the Code is voluntary and is promulgated by the industry, all MNOs have pledged compliance with it. The AA has also been formed by the CAHK and came into operation on March 31, 2010.
My response to the specific questions raised by the Honourable Member is set out below -
(a) In the period from April 2009 to March 2010, OFTA received 54 complaints in which the complainants claimed that they were charged for MCS to which they did not subscribe. As the cases concerned were billing disputes, with the consent of the complainants, OFTA would refer the cases to the respective MNOs for resolving the issues. So far 36 such cases have been referred to the MNOs.
By the end of March 2010, 28 out of the 36 cases referred to MNOs have been settled. For the remaining eight cases, mediation between the complainants and MNOs is being arranged upon the complainants' request.
(b) and (c) The Unsolicited Electronic Messages Ordinance (UEMO) (Cap. 593) targets at regulating electronic marketing activities. The sending of messages with a view to offering to supply, advertising or promoting MCS is regulated by the UEMO, and should follow the sending rules stipulated therein. Such rules include the provision of sender information and unsubscribe arrangements in a message, and not sending messages to recipients who have registered with the do-not-call register established by the Telecommunications Authority (TA) unless consent has been obtained from the concerned recipients. The TA may issue enforcement notices to senders of messages who breach the sending rules for them to rectify the contravention. Failure to comply with an enforcement notice is an offence.
Billing disputes in relation to chargeable MCS are consumer issues, which are now regulated under the Code as aforementioned. To improve the mechanism of subscribing to chargeable MCS in the interest of consumers and to reduce associated disputes, the Code forbids CSPs to send such chargeable messages without obtaining the explicit positive confirmation of subscription from the users. MNOs will cancel the contract with CSPs which do not comply with the Code and fail to rectify any breaches.
OFTA will monitor closely the implementation of the Code and will assess its effectiveness in due course. If the general situation in relation to MCS does not improve, we will consider whether or not there is a case to pursue legislative amendments further to enhance consumer protection.
Ends/Wednesday, April 14, 2010
Issued at HKT 14:29
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