Written Submission to Bills Committee
by Peoples Telephone Company Limited
in relation to
the Telecommunication (Amendment) Bill 1999
1.1 Among those major amendments introduced by the Telecommunication
(Amendment) Bill 1999 ("the Bill"), it is believed that all the Public
Radiocommunication Service Licensees ("PRS Licensees") will welcome the
changes to Section 14 of the Telecommunication Ordinance ("the Ordinance")
regarding the right of access to land. If the assent
of the Legislature is obtained, all PRS Licensees will have the identical
right of access to lands and buildings as currently enjoyed by Fixed Telecommunication
Network Services Operators ("FTNS Operators") for the purpose of erecting
and maintaining radiocommunication installations. In this submission,
we will demonstrate why such an amendment is necessary.
2. Major insufficiencies under the existing Section 14
2.1 PRS Licensees have in fact come across not a few difficulties so
far in obtaining access to shielded areas of public places such as tunnels
or shopping malls. In a number of bitter experiences
we have encountered, the commercial offers from some land owners are neither
fair, reasonable nor realistic. For instance, some offers are
in effect analogous to "revenue sharing" because the asking licence fee
is linked up with the number of our subscriber base or otherwise total
volume of airtime revenue in the relevant month. In some
other cases, the offers are extortionate enough to exclude any reasonable
PRS Licensee so much so that these sites will be available only to those
entities who have good connection with the land owners. Coupled
with the fact that PRS Licensees are usually in a less favourable position
during the course of negotiation, land owners can tactfully manoeuvre the
negotiation process to the detriment of PRS Licensees.
Many a time we have no choice but to succumb and accept this "all or nothing"
approach however unreasonable it may be. Otherwise, we will not be
able to extend our coverage to these locations and will likely face the
complaints of poor coverage from the public and the press. Worse
still, the Telecommunications Authority ("TA") is not in a legitimate position
to step in and help PRS Licensees break the ice due to the restriction
under the Ordinance.
2.2. In contrast, FTNS Operators have the privilege of seeking help
from the TA in the event that similar problems take place and
the result being that FTNS Operators will be allowed access without difficulty.
This is FTNS Operators' privilege under the Ordinance. As mentioned
however, Licensees cannot count on such a "fall back" position in case
of deadlock. In our view, there is no practical
reason to justify why equality was omitted in the existing Section 14.
2.3 A majority of PRS Licensees, who are not satisfied with the
state of affairs, have duly escalated the issue to the Government jointly
in March 1997 in response to the Government's consultative papers.
We urged the Government to improve Section 14 with a view to reinstating
equality into Section 14. The outcome of the Bill demonstrates
the fact that our views have been adopted.
3. How the amendment can be justified by other grounds
3.1 It is argued that the revised Section 14 only safeguards the interests
of PRS Licensees exclusively. This argument is not difficult
to be refuted because the revised Section 14 has duly taken into consideration
of the public interest, which is the tenet of HKSAR Government's Telecommunications
Policy. To recapitulate, one of the policy objectives is to
make the widest range of quality telecommunications services available
to the community at reasonable price (emphasis added). As far
as we understand, this policy statement remains intact to date.
3.2 We appreciate that there is exigent need to maintain adequate mobile
coverage within the territory for the sake of public interest.
It is also the reasonable expectation of the public that telephone services,
whether fixed lines or mobile services, should have reached every piece
of populated land and every popular shopping mall. But our
concern is that not until Section 14 is changed, it will be highly remote,
if not altogether impossible, for PRS Licensees to accomplish the TA's
objective qua the TA's vehicle. Without the revised Section
14 and the assistance of the TA, the efforts of PRS Licensees alone are
unable to provide a wide telecommunications coverage for the enjoyment
of the public, particularly in those shielded areas where reasonable and
sensible commercial agreements cannot be reached between the land owners
and PRS Licensees. Therefore, the granting
of the right of access equally to PRS Licensees will not only relieve the
anxiety of our fellow operators but also benefit the entire community as
3.3 In the context of regulatory issue, the TA once said in a public
occasion that they are in fact establishing the world's best practice in
several areas. Whether or not the local practice is best
practice should not be judged in isolation. Instead, it must
be assessed with reference to world class practice. We
do not have many examples of world class practice in hand but we believe
our reference to the regime of Australia, the United Kingdom and the United
States will suffice to strengthen our case for the revised Section 14.
As a matter of fact, all these three countries have appropriate regime
for land access open to all telecommunications service providers.
That being said, it is submitted that these world class examples should
be pursued and employed as the benchmark for streamlining our existing
4. Land owners' concern
4.1 We have been told that some land owners, particularly tunnel operators,
have reservation on the revised Section 14 lest such change will affect
their property rights and prejudice their rights in seeking compensation.
Some also fear that the TA may have excessive power in determining the
compensation and the fee under the revised Section 14. With
respect, all these contentions are not entirely persuasive on legal perspective.
4.2 With the deliberation of our law draftsmen, the concern of land
owners have been duly counted and addressed. Under the revised
Section 14, it is manifestly clear that the TA should determine the compensation
and the fee reasonably and fairly having taken into account all the circumstances.
Also, the change will not confer the TA an absolute power over these commercial
matters to the exclusion of judicial intervention. It
is our belief that any aggrieved party as a result of the TA's determination
(including also PRS Licensee) has the inherent and legitimate right to
address his grievances to the court. Obviously, the revised
Section 14 has been designed to strive for fairness, impartiality and justice,
the benefits of which will be equally available to every concerned parties
following the passage of the Bill.
5. Other incidental issues
5.1 We understand that the Bill has also dealt with other incidental
matters such as spectrum management and number plan etc.
Our view on these matters is that provided the TA will exercise these powers
in the interests of the industry and in a fair and reasonable manner,
we are not prepared to pose any objection to these amendments.
It is particularly because prolonged discussions may delay the revised
Section 14 coming into play in good time.
6.1 Mobile telecommunications service has become part of our daily life
and it can hardly be dispensed with. Furthermore, the
distinction between fixed lines and mobile services is becoming increasingly
insignificant and immaterial. Being an incumbent
operator, we should have the privilege of gaining fair and equitable
access to lands and buildings to the intent that we can provide the essential
public service to the community without restriction.
6.2 Given all FTNS Operators are allowed the right of access to any
lands and buildings under the existing legislation, PRS Licensees should
also be given the same right for the sake of equality, failing which such
telecommunications policy will be seen as discriminatory or otherwise unfairly
prejudicial to interests of PRS Licensees.
6.3 In essence, the revised Section 14 should be greeted with acclaim.
This is the best solution to balance the needs and interests of PRS Licensees,
land owners and the public. It is also anticipated that
following the new Section 14, a "win-win" situation can be seen.
6.4 The TA, being an impartial regulatory body, will be in the
best position to oversee the proper implementation of the telecommunications
policy and therefore adequate powers should be given to the TA for the
fulfillment of such roles. Further, the better view is that
by virtue of the integrity of the TA, the outcome of each determination
under Section 14 will be fair, reasonable, acceptable and commercially
viable as far as all parties are concerned.
6.5 In these circumstances, we must give our wholehearted support to
the Bill and we sincerely hope that our Honourable Legislative Councillors
will do the same without hesitation.
Peoples Telephone Company Limited
30th August 1999