LegCo Paper No. CB(2)1294/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/BC/5/96
Bills Committee on Television (Amendment) Bill 1996
Minutes of the 4th Meeting
held on Thursday, 30 January 1997 at 4:30 pm
in Conference Room B of the Legislative Council Building
Members Present :
Hon Andrew CHENG Kar-foo (Chairman)
Hon Albert CHAN Wai-yip (Deputy Chairman)
Hon Mrs Selina CHOW, OBE, JP
Dr Hon Samuel WONG Ping-wai, OBE, FEng, JP
Hon NGAN Kam-chuen
Hon Lawrence YUM Sin-ling
Members Absent :
Hon Emily LAU Wai-hing
Hon MOK Ying-fan
Hon Mrs Elizabeth WONG, CBE, ISO, JP
Public Officers Attending :
- Mrs Rita LAU
- Deputy Secretary (Broadcasting and Entertainment)
- Mr P D W BOURTON
- Principal Assistant Secretary (Broadcasting)
- Mr Vidy CHEUNG
- Senior Assistant Law Draftsman (Acting)
- Mr K S WONG
- Assistant Director of Telecommunications
- Mr Eddy CHAN
- Commissioner for Television and Entertainment Licensing
Clerk in Attendance :
- Mrs Anna LO
- Chief Assistant Secretary (2) 2
Staff in Attendance :
- Miss Connie FUNG
- Assistant Legal Adviser 3
- Mr Colin CHUI
- Senior Assistant Secretary (2) 2
I. Clause-by-clause examination of the Bill
Proposed section 2(1) - Definition of "broadcasting"
(LegCo Paper No. CB(2) 1086(01))
"Encroachment" on existing television licences
Referring to deputations comments at item 1.1 of LegCo Paper No. 1086/96-97(01), some members were concerned that the video-on-demand (VOD) programme service licence(s) was in fact a pay television (TV) licence in disguise and would encroach upon the business of existing TV services licensees. The VOD programme service under the Bill, with the inclusion of live programmes provision, was different from the original proposal put forward by the Government in 1996 and pre-empted the Governments review of television environment planned for 1998.
2. Representatives of the Administration recapitulated that the Government, in the 1996 review on the deregulation of the pay TV market, concluded that no additional pay TV licences should be issued after the expiry of Wharf Cables right to exclusivity in May 1996 and not more than two VOD programme service licences should be issued. The Administration stressed that the decision not to issue new pay TV licences did not mean that the Government would not introduce new competitors (i.e. VOD programme service licensee(s)) to the TV market. The proposed section 2(4) supplemented the proposed section 2(1)(c) in defining VOD programme service. While real-time transmissions and simultaneous transmissions by VOD were theoretically possible, there was no technology available that made this possible at the moment, so there was no realistic possibility that it could be commercially deployed before the review in 1998.
3. Notwithstanding the Administrations explanation, some members were concerned that, in view of the technological advancement, it might still be possible that VOD programme service licensee(s) could provide real-time transmissions before the review in 1998. They considered that real-time transmissions by VOD should not be allowed in order not to pre-empt the review in 1998. The Administration undertook to consider the suggestion.
4. A member suggested the definition of VOD programme service be amended to the effect that viewers should control the timing of viewing VOD programmes. She considered that such amendment, whilst not adversely affecting a programme service licensee(s), could allay existing broadcasters fears that the licensee(s) could control the timing of programme provision. The Administration agreed to consider the proposal.
Transmissions from outside Hong Kong
5. Regarding Wharf Cables proposal to remove "within Hong Kong" from the definition of VOD programme service so that overseas services would fall within the regulatory framework, the Administration, with reference to item 1.3 of LegCo Paper No. CB(2) 1086/96-97(01), explained the rationale for not seeking to regulate overseas services. The Administration pointed out that the existing telephone network was not able to transmit television programmes from outside Hong Kong. Such overseas services were not likely to become a practical proposition before 1998 for the following reasons -
- There were technological difficulties in developing the fixed telecommunication network to cater for such overseas services.
- It was not commercially viable to download bulky files containing TV programmes, such as movies, from overseas servers in view of the high IDD charges incurred.
6. The Administration pointed out that, under para 5 of the proposed Schedule 1A, services delivered over the Internet would not fall within the regulatory framework. Regarding regulation of materials transmitted through the Internet, the Government had decided not to introduce regulatory controls on the Internet at this stage. From a drafting point of view, the inclusion of "within Hong Kong" in the definition could put beyond doubt that services originating outside Hong Kong would fall outside the regulatory framework. If the phrase within Hong Kong" was removed from the definition as suggested by Wharf Cable, TV programmes transmitted from outside Hong Kong would be regulated under the Bill. Such regulation of overseas services would adversely affect peoples right to freedom of communications and present practical problems in implementing the regulation. The courts would have no legal jurisdiction over non-Hong Kong domiciled companies without a place of business in Hong Kong. The only way to "regulate" them would be to prevent people in Hong Kong from accessing services provided by such companies. To achieve this, it would be necessary to continually monitor the Internet for such services, in order that the Government could require Internet Service Providers and Fixed Telecommunication Network Services to block access to such sites. Even worse, it might be necessary to monitor private transmissions in order to ascertain whether they were intended for the receipt of unauthorised overseas services. In the Governments view, this would be unacceptable.
7. In response to the Chairman, ALA3 opined that the inclusion of the phrase "within Hong Kong" in the definition of "programme service" would achieve clarity and certainty from the drafting point of view. As a matter of policy, members might consider the need to regulate point-to-point transmissions from outside Hong Kong.
Section 2(1) - Definition of "disqualified person"
(LegCo Paper Nos. CB(2) 1093 and 1119/96-97)
8. Referring to the Administrations paper at LegCo Paper No. CB(2) 1093/96-97, representatives of the Administration explained the reasons for a proposed Committee stage amendment (CSA) to the definition of "disqualified person" in Section 2(1). Referring to the proviso set out in para 5(b) of the Administrations paper, a member asked whether the proviso could not prevent a person/company from gaining control of both the Hongkong Telecom and Wharf Cable through acquisition of sufficient shares of the two companies. The Administration pointed out, under a tracing provision of the Television Ordinance, the Government could identify the voting controller(s) of the two companies and check whether the controller(s) fell within the definition of "disqualified persons" who/which would not be allowed to control the subscription television licensee. Members supported the policy intention of the CSA and requested ALA3 to examine the drafting aspect of the CSA.
Section 2(1) - Definition of "newspaper"
9. The Administration pointed out that the proposed definition of "newspaper" was the same as that in the Registration of Local Newspapers Ordinance. The definition was included in the Bill as a result of the proposed extension of the definition of "disqualified person" to include a company which published a local newspaper or exercised control of such company. The Chairman requested ALA3 to examine the drafting aspect of the definition.
Section 2(1) - Definition of "television programme"
10. Regarding ATVs comment that the phrase "material which is predominantly text or data" in the definition of "television programme" was too vague (item 8.1 of LegCo Paper No. CB(2) 1086/96-97(01)), representatives of the Administration said that, as pointed out in the Governments response in the aforesaid paper, the phrase came directly from the present definition of "television programme" and was intended to exclude information services such as Teletext (common in other countries, and under consideration in Hong Kong) and other screen-based information services using mainly text and data, such as those provided by news agencies. The Government did not consider that to be imprecise. The Chairman asked ALA3 to advise whether the drafting of the definition was in order.
11. Regarding Mr Eric Spains point that the worldwide trend was not to restrict the provision of Value Added Services via Value Added Network (LegCo Paper No. CB(2) 1086/96-97(02) referred), representatives of the Administration pointed out that the Bill did not prevent the provision of Value Added Services (VOD programme services were Value Added Services) described in his submission and the only proposed restriction was on the number of licences (not more than two) to be issued. Whilst allowing competition between VOD programme services; the restriction could avoid endangering the financial viability of subscription television licensee pending the review in 1998 in which the Government would consider the removal of such restriction.
12. As the definition of "broadcasting" in section 2(1) had to be read in conjunction with section 2(4) which explained the meaning of the phrases "transmission on a point-to-point basis", "transmission within Hong Kong" and "a television programme", members requested the Administration to take into account the views expressed on the definition in section 2(1) in considering amendment(s), if any, to section 2(4). Members did not support Wharf Cables proposal that the definition of "transmission on a point-to-point basis" should be qualified to require that transmissions be "non-simultaneous" (item 3.1 of LegCo Paper No. CB(2) 1086/96-97(01)).
Section 6B(1) - Requirement for broadcasting
13. A member suggested to specify "an appropriate licence" in section 6B(1). ALA3 pointed out that the meanings of "licence" used in the Television Ordinance were already set out in section 2 of the Ordinance.
Section 8(2)(b)(i) - Grant of licences
Section 8A(2)(c) &(d) - Restriction in respect of commercial television broadcasting
14. The Administration explained that, as the Bill extended the definition of "broadcasting" to cover the provision of a programme service, it was proposed to replace "programme service or services" under the existing section 8(2)(b)(i) by "broadcasting service or part of it" to avoid confusion. This new phrase referred to the service of broadcasting defined under section 2(1) as amended by the Bill. For the same reason, "programme service" under section 8A(2)(c) and (d) was proposed to be amended.
II. Date of next meeting
15. The next meeting was scheduled to be held on Tuesday, 18 February 1997 at 8:30 am in Conference Room B of the Legislative Council Building.
(Post-meeting note : On the instruction of the Chairman, the meeting was rescheduled to 24 February 1997 at 4:30 pm in Conference Room A of the Legislative Council Building.)
16. The meeting ended at 5:55 pm.
24 February 1997
Last Updated on 15 October 1997