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The following is issued on behalf of the Communications Authority:
This press release summarises the Communications Authority (CA)'s decisions following its 17th meeting held in February 2013:
SmarTone found in breach of its Unified Carrier Licence
In September 2012, in response to a complaint lodged by a member of the public, the Office of the Communications Authority (OFCA) had conducted an investigation and found that a radio base station had been operated by SmarTone Mobile Communications Limited without the prior approval of the CA. Having considered the findings of OFCA and the representations made by SmarTone on the case, the CA was of the view that SmarTone had failed to comply with General Condition 12.1 of its Unified Carrier Licence and had decided to issue a warning to SmarTone for it to strictly observe the relevant licence condition in future. For details, please refer to the CA's decision, which is published at www.coms-auth.hk/filemanager/statement/en/upload/164/Smartone_finalDecision_20130226.pdf.
Non-domestic television programme service licence
The CA approved the application by One TV Media Global Limited (One TV) for a non-domestic television programme service licence. The period of validity of the licence is 12 years, from February 6, 2013, to February 5, 2025 (both dates inclusive).
Following the issue of a new licence to One TV, there are 18 non-domestic television programme service licensees in Hong Kong providing more than 200 satellite television channels targeting viewers in the Asia Pacific region.
Final decision on contraventions by ATV of the TV Programme and Advertising Codes and licence condition in respect of its television programmes "Caring Hong Kong's Future", "ATV Focus", two pieces of broadcast materials and "Chimelong Resort Special: Fun at Panyu"
"Caring Hong Kong's Future"
The CA received close to 2 200 public complaints about the programme broadcast on the Home and Asia Channels of Asia Television Limited (ATV) on November 11, 2012 (Note). The major areas of complaint were that:
Inaccurate factual contents
(a) the programme contents, such as the remarks that the audience rating between ATV and Television Broadcasts Limited (TVB) was in the ratio of 4:6, were misleading and inaccurate;
One-sided views, right of reply and opportunity for response
(b) the programme included one-sided views against the issuance of new domestic free television programme service licences (free TV licences) and criticisms against a Legislative Council Member, but did not provide suitable opportunities for responses;
Misuse of spectrum
(c) ATV misused the spectrum, a scarce public resource, to promote its own interests; and
Pre-emption of children's programmes
(d) the livecast of the gathering was unnecessary and pre-empted the children's programmes.
In considering the complaints, the CA noted that the programme concerned was a livecast of a gathering against the issuance of new free TV licences which was organised by the Asia Club and supported by ATV. ATV announced the programme as a personal view programme (PVP) at its start.
While the CA was mindful of the strong public concerns over ATV's broadcast again of a PVP to express only one-sided views on a controversial issue of public importance in Hong Kong, in particular when ATV appeared to have broadcast the programme concerned to promote its own interests in the issue, the CA noted that the existing Generic Code of Practice on Television Programme Standards (TV Programme Code) did not expressly prohibit a licensee from expressing its views in a PVP. As there were persons expressing their own views on the issue under discussion in the programme, the CA accepted that the programme could be regarded as a PVP.
This notwithstanding, as a PVP, the programme was required to ensure that a certain degree of impartiality was preserved.
On the basis of the above, the CA found that ATV had contravened Chapter 9 of the TV Programme Code governing PVPs by:
(a) failing to provide an appropriate and timely opportunity for those being criticised to respond - in breach of paragraph 16;
(b) making the remarks on the "4:6 TV audience ratio" with the wording "according to" (English translation) and "in fact" (English translation) in the programme viz "according to the telephone sample survey conducted for ATV by the Public Opinion Programme of the University of Hong Kong (HKUPOP), the ratio (of the audience rating) between ATV and TVB in the previous year (viz 2011) had reached 'six to four' (sic), and the situation that there was only one large TV station dominating the market no longer existed" (English translation) would give viewers a wrong perception that the said ratio was part of the data/findings of the telephone survey conducted by the Public Opinion Programme of the University of Hong Kong (HKUPOP) and that the ratio of 4:6 measured the share of TV audience captured by the respective channels as in the case of a traditional TV audience survey - in breach of paragraph 17(b);
(c) failing to provide a suitable opportunity for response to the programme - in breach of paragraph 17(c);
(d) failing to allow a broad range of views to be expressed on the issue about the issuance of free TV licences - in breach of paragraph 17(d); and
(e) failing to fulfil the licence requirement for the broadcast of children's programmes - in breach of Condition 7.1(a) and (b) of the First Schedule of ATV's licence.
The CA noted that this was not the first time that ATV had breached the provisions in the TV Programme Code pertaining to PVPs, in particular those on the need to provide a suitable opportunity for response and to allow a broad range of views to be expressed. The CA considered that the breaches in the present case were more serious in nature and in their impact on the viewing public than those in the precedent case concerning the programme "ATV Focus" broadcast from September 3 to 7, 2012, having regard to the duration of the present programme and the frequency of repeated broadcast of the programme, as well as the fact that the programme focused on an issue which ATV has a self-interest.
In respect of the remarks on the "4:6 TV audience ratio", the CA noted ATV's representations that the methodology employed for the HKUPOP survey was not comparable to that adopted in a traditional one, and that HKUPOP only provided the survey data and ATV compiled the said ratio itself based on its own interpretation of the data. However, the said TV audience ratio as presented in the programme, without making known to the viewers the details on the survey methodology and how ATV derived such a ratio from the data of the survey itself, would give an average viewer a wrong impression that (a) the said ratio was part of the data/findings of the HKUPOP survey, especially given that the remarks of the host contained the wording "according to" (English translation) and "in fact" (English translation), and (b) the ratio of 4:6 measured the share of TV audience captured by the respective channels as in the case of a traditional TV audience survey.
The CA also noted that according to an article prepared by HKUPOP, HKUPOP had never proposed, accepted or agreed to the "4:6 TV audience ratio" as claimed by ATV. HKUPOP had once asked ATV to use the term "viewing rate" to replace "TV audience share". The CA was given to understand that Dr Robert Chung of HKUPOP had conveyed again to ATV similar observation on using the term "ratio between viewing rate" rather than "audience ratio" in the context of the survey for ATV. The way the remarks were presented could not be said to have respected the fact that the relevant ratio was not the data/findings of the HKUPOP survey.
Taking into account the severity, nature and duration of the lapse, the CA decided that a financial penalty of $50,000 should be imposed on ATV for breaching paragraphs 16, 17(b), 17(c) and 17(d) of Chapter 9 of the TV Programme Code and Conditions 7.1(a) and (b) of the First Schedule to ATV's licence.
In reaching its decision on this case, the CA has adhered strictly to the relevant provisions of the TV Programme Code and the licence of ATV and has had regard to the need to treat all parties fairly and to preserve freedom of expression. That said, the CA is fully conscious of the serious public concern about programmes presenting one-sided views to promote the interests of a licensee in the form of a PVP. Accordingly, the CA is reviewing the relevant parts of the TV Programme Code as a matter of priority in order to address the concern.
Apart from the above case, the CA also considered four other complaint cases against ATV:
(a) "ATV Focus" broadcast on the Home and Asia Channels of ATV on November 8, 11, 12, 22, 26 and 27 and December 5, 2012
The CA decided that the programme concerned also presented one-sided views against the issuance of free TV licences without a suitable opportunity for response in the programme and made similar remarks on the "4:6 TV audience ratio". As such, it was also in breach of paragraphs 16, 17(b), 17(c) and 17(d) of Chapter 9 of the TV Programme Code. While many episodes of the programme under complaint were broadcast before the CA announced its final decision of similar contravention by ATV on December 5, 2012, regarding the case concerning the issue of national education broadcast in "ATV Focus" from September 3 to 7, 2012, ATV should be fully aware of the strong concern of the public and of the CA on its broadcast of programmes presenting one-sided views on controversial issues of public importance in Hong Kong. Taking into account the repeated lapse and the continued broadcast of the same programme in a manner not complying with the relevant requirements governing PVPs, the CA decided that a financial penalty of $50,000 should be imposed on ATV for breaching the aforesaid provisions of the TV Programme Code.
(b) "6:00 News" and "Late News" and certain "Broadcast Materials" broadcast on the Home Channel of ATV on November 24, 2012
The CA considered that the 4.5-minute "broadcast materials" about the remarks of ATV's Executive Director against the issuance of new free TV licences should be considered as an advertisement as they promoted the interest of ATV. The materials broadcast immediately after the news reports were not clearly identifiable as advertisements, which is in breach of paragraph 4 of Chapter 3 of the Generic Code of Practice on the Television Advertising Standards (TV Advertising Code). The CA also considered that the remarks on the "4:6 TV audience ratio" in the materials would give an average viewer an impression that it was a factual claim that the said ratio was part of the data/findings of the HKUPOP survey, which is not the case as explained above in the complaint case concerning ATV's programme "Caring Hong Kong's Future". As the remarks were presented as a factual claim but could not be substantiated, they are in breach of paragraph 1 of Chapter 4 of the TV Advertising Code. The CA considered that the lapse was of a serious nature and decided that the broadcast of the two pieces of advertising materials was in breach of the relevant provisions of the TV Advertising Code and that a financial penalty of $50,000 should be imposed on ATV.
(c) "ATV Focus" broadcast on the Home and Asia Channels of ATV on September 12 and October 22 and 23, 2012
The CA noted that ATV again breached the rules applying to PVPs, in particular those on the need to provide a suitable opportunity for response and allow a broad range of views to be expressed. As explained above, the CA considered that ATV should be well aware of the strong concern of the public and of the CA on its broadcast of programmes presenting one-sided views on controversial issues of public importance in Hong Kong. Nonetheless, it still broadcast the same programme in a manner not complying with the relevant requirements governing PVPs. The CA thus decided that a financial penalty of $50,000 should be imposed on ATV for breaching paragraphs 1A, 16, 17(b), 17(c) and 17(d) of Chapter 9 of the TV Programme Code.
(d) "Chimelong Resort Special: Fun at Panyu" broadcast on the Home Channel of ATV on September 16, 2012
The CA noted that there was a clear breach of the provisions governing indirect advertising in programmes and programme sponsorship. In view of the clear breach and taking into account similar precedents and ATV's records of non-compliance with the relevant provisions governing indirect advertising and programme sponsorship, the CA decided that a financial penalty of $60,000 should be imposed on ATV for breaching paragraph 1 of Chapter 11 of the TV Programme Code and paragraph 10(a) of Chapter 9 of the TV Advertising Code.
Details of the cases are at www.coms-auth.hk/filemanager/en/content_713/appx_20130226_en.pdf.
Note: The programme was repeated at various time slots including 11.55pm on November 11, 3.05pm on November 12 and 11.50pm on November 15 on the Home Channel, and 7.30pm on November 12 and 12.05am on November 15 on the Asia Channel.
Ends/Tuesday, February 26, 2013
Issued at HKT 18:00
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