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The following is issued on behalf of the Communications Authority:
The Communications Authority (CA) today (February 22) announced its decision to invoke the procedures under the Broadcasting Ordinance (BO) to suspend the domestic free television programme service licence (free TV licence) of Asia Television Limited (ATV) for a period of 30 days. The CA convened a special meeting to consider the various cases of non-compliance of ATV with the statutory and licence provisions, and made the above decision having considered the full circumstances of the cases, the representations of ATV and the statutory requirements under the BO.
Under the BO, a licence shall only be suspended under circumstances specified in section 31. The CA was satisfied that, in the case of ATV, its failure to:
(a) comply with the relevant licence requirements to broadcast comprehensive news bulletins on its Home Channel from February 6, 2016 to February 19, 2016, and on its World Channel from February 6, 2016 onwards;
(b) comply with the residence requirement under the BO in respect of its directors;
(c) comply with the direction issued by the CA, requiring it to pay the first instalment of the outstanding licence fee of its free TV licence by the deadline stipulated by the CA; and
(d) pay two sets of financial penalties by the deadline stipulated by the CA
constitute grounds for licence suspension under section 31 of the BO. Details of the case are at: www.coms-auth.hk/filemanager/en/content_713/appx_20160222_e.pdf.
"In accordance with the BO, the CA has today served on ATV a notice that the CA has under consideration the suspension of its licence and the underlying grounds and invited ATV to make representations in 28 days. Upon receipt of ATV's representations and following due process under the BO, the CA will make a final decision on the matter," a spokesman for the CA said.
Under the current regulatory regime, the range of sanctions that may be imposed by the CA under the BO against a contravention of a licensee include administrative sanctions (i.e. advice and warning), financial penalty, and in case of the most serious breach, suspension of licence. The power to revoke a broadcasting licence, following a recommendation to that effect by the CA, rests with the Chief Executive in Council.
Having considered the following factors, the severity, nature and duration of the above breaches of ATV, the representations of ATV and the statutory requirements under the BO, the CA decided to resort to the most severe sanction it may impose under the BO for these contraventions, by invoking the procedures to suspend ATV's free TV licence for a period of 30 days:
(a) notwithstanding the Chief Executive in Council's decision not to renew ATV's free TV licence, it remains incumbent upon ATV to comply at all times with all applicable regulatory requirements under the BO and the conditions in its existing free TV licence. Provision of news programmes is a fundamental obligation of a free TV licensee to provide free information to the general public. Ensuring the compliance of its directors with the residence requirement is another fundamental statutory obligation of a free TV licensee. It is also the statutory responsibility of a licensee to pay the licence fee and effect payment of a financial penalty. ATV has failed these obligations in their entirety;
(b) ATV's failure to provide news programmes in accordance with the licence requirement for more than two weeks was a contravention of a serious nature and a violation of ATV's fundamental obligation as a free TV licensee. ATV has not accounted for the efforts it had made, if any, to avoid the cessation of news programmes;
(c) the residence requirement in respect of the directors of a free TV licence is a fundamental statutory requirement under the BO, to ensure that a free TV licensee is essentially controlled by local residents so that its programmes and services would adequately cater for the interests and tastes of local audience. ATV's failure to comply with such a statutory requirement is a very severe contravention; and
(d) during the validity of its existing licence, ATV has failed repeatedly to pay its licence fee and financial penalty in accordance with the provisions of the BO. This is already the fourth breach of ATV of the same provisions on payment of licence fees in a space of four years, and its third breach of the provision on payment of financial penalty in a space of three months. ATV's repeated breaches of the same statutory and licence requirements added to the severity of the present contraventions.
The CA is mindful of possible views from some quarters that, with less than six weeks to go before the expiry of ATV's existing free TV licence on April 1, 2016, it may appear pointless for the CA to sanction a beleaguered and cash-strapped ATV, whose management and staff have been struggling, after all, to maintain a minimum level of service notwithstanding ATV's financial predicament.
"The situation facing ATV has indeed put the CA in a considerable dilemma. On balance, the CA's considered view is that, as an independent regulator for the broadcasting sector, it is duty bound to perform its statutory function of regulating the broadcasting industry in accordance with the relevant statutory/licence provisions, and in face of contraventions by licensees, to impose sanctions which are commensurate with the nature and severity of the breaches," the spokesman said.
"Of equal importance if not more, turning a blind eye to, or imposing sanction that is not commensurate with the nature and severity of the breaches, would send a wrong message to the broadcasting sector, that a beleaguered and cash-strapped licensee would be given a carte blanche to contravene the BO and licence conditions no end with little consequence. This is totally unacceptable from a regulatory perspective," the spokesman added.
The CA is conscious that the procedures for suspension of ATV's free TV licence would take time and it would be rather unlikely that the various statutory steps (Note) could be completed in time for any licence suspension to take effect before the expiry of ATV's free TV licence on April 1, 2016.
"This is however not a valid basis for, and indeed there is no question of, the CA short-circuiting, or bypassing these procedural requirements and timeline under the BO," the spokesman stressed.
"Taking into account the full circumstances of the cases, and in order to uphold the integrity of the regulatory regime under the BO, the CA considers that it should proceed to initiate the procedures to suspend ATV's free TV licence as the sanction for breaches by ATV of the BO and its free TV licence," the spokesman said.
Note: It is stipulated clearly in the BO that, before the CA makes a decision on whether to suspend a free TV licence, it should serve on the licensee a notice in writing, stating that representations as regards the proposed suspension may be made to it during a period of not less than 28 days, and where applicable, it should conduct a public hearing before making a decision on licence suspension. It is also clearly set out in the BO that a decision on licence suspension shall not take effect until the expiry of the statutory appeal period.
Ends/Monday, February 22, 2016
Issued at HKT 19:06
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