The Communications Authority ("CA") decided not to proceed further with the procedures under the Broadcasting Ordinance ("BO") to suspend the domestic free television programme service licence ("free TV licence") of Asia Television Limited ("ATV").
In taking the decision not to proceed forward, on top of the full circumstances of the case, the CA has also taken into account the procedural requirements under the BO pertaining to licence suspension and the overall timeline, and the fact that past 1 April 2016, ATV will no longer be a holder of a free TV licence under the BO and there is no more valid licence to suspend. The CA has not been able to consider the representations of ATV on the licence suspension, since, despite being afforded the opportunities to do so, ATV has chosen not to make representations.
"Although the CA has decided not to proceed further, the CA remains firmly of the view that, given the severity and repeated nature of the breaches committed by ATV in the month of February, and subsequently also in March 2016, it would be more than justified to impose on ATV the most severe sanction it may impose under the BO, i.e. to suspend ATV's free TV licence for a period of 30 days," a spokesperson for the CA explained.
"Notwithstanding the CA's decision not to proceed further, the CA has advised ATV in no uncertain terms that the severity and repeated nature of the breaches of licence conditions and statutory provisions by ATV will form part of the business record of ATV and the persons exercising control of it at the time the breaches occurred, and may be considered by the CA on future occasions when the need arises for assessing the fitness and properness of ATV and persons exercising control of it," the spokesperson said.
The CA has also put ATV on clear notice that, in not proceeding further with the licence suspension procedures, the CA is not, in any way, to be taken as excusing or waiving any of the concerned breaches of ATV. The CA reserves its right to pursue all enforcement actions and all procedures in relation to ATV's breaches of statutory obligations and licence conditions as well as its failure to comply with orders and directions of the CA.
To recapitulate, on 22 February 2016, the CA decided to invoke the procedures under the BO to suspend the free TV licence of ATV for a period of 30 days as it was satisfied that, during the month of February 2016, ATV's failure to -
comply with the relevant licence requirements to broadcast comprehensive news bulletins on its Home Channel from 6 February 2016 to 19 February 2016, and on its World Channel from 6 February 2016 onwards;
comply with the residence requirement under the BO in respect of its directors;
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
pay two sets of financial penalties by the deadline stipulated by the CA,
constituted grounds for licence suspension under section 31 of the BO. In accordance with the BO, the CA served on ATV on the same day a notice that the CA had under consideration the suspension of its free TV licence and the underlying grounds, and invited ATV to make representations in 28 days by 21 March 2016.
The CA further advised ATV in March 2016, that its failure to :
pay the provisional variable fee of its free TV licence by the statutory deadline; and
comply with the direction issued by the CA, requiring it to pay the outstanding provisional variable fee of its free TV licence by the deadline stipulated by the CA,
constituted additional grounds for licence suspension under section 31 of the BO and served on ATV a notice and invited ATV to make representations.
In deciding to invoke the licence suspension procedures against ATV, the CA was fully conscious of the fact that the necessary statutory steps for the proposed licence suspension would not be completed before the expiry of ATV's free TV licence1. That notwithstanding, the CA was firmly of the view that, as a regulator, it is incumbent upon the CA to make utmost efforts to perform its statutory function of regulating the broadcasting industry and impose a sanction that is commensurate with the nature and severity of the breaches of ATV. For this reason, and in order to preserve the integrity of the regulatory framework and to give a correct message to the industry, the CA decided to proceed to invoke the licence suspension procedures against ATV on the aforementioned grounds.
"ATV's free TV licence will expire in 8 days' time. There are real practical constraints for the CA to go through the due process and complete all the licence suspension procedures before ATV's free TV licence expires on 1 April 2016, at which point it would be meaningless to enforce a licence suspension decision of the CA, even if one were made, as ATV will have ceased its broadcast," the spokesperson said.
"Pragmatically speaking, neither would it be a proper use of public resources to proceed further by conducting a public hearing solely for the purpose of meeting the procedural requirement pertaining to licence suspension, while we know fully well that under the statutory timetable the suspension could not be implemented," the spokesperson further explained.
The above account for the CA's decision not to proceed further with the procedures under the BO to suspend ATV's free TV licence.
Communications Authority
Secretariat
24 March 2016
Notes:
| (1) |
It is stipulated 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 set out in the BO that a decision on licence suspension shall not take effect until the expiry of the statutory appeal period (i.e. within 30 days of the notification to ATV of the CA's decision). |