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The following is issued on behalf of the Broadcasting Authority:
At its meeting today (April 28), the Broadcasting Authority (BA) issued its findings on a complaint that Hong Kong Broadband Network Limited (HKBN) was operating a domestic pay television programme service (HKBN's Service) without an appropriate broadcasting licence, in contravention of section 5(1) of the Broadcasting Ordinance (Cap. 562) (BO).
The complainant alleged that HKBN's Service did not fall within the exemption stipulated under section 5 of Schedule 3 to the BO because HKBN's Service was provided on a private, closed, proprietary network rather than on the Internet.
After careful consideration of the submissions from contending parties, the test reports of the Office of Telecommunications Authority and relevant expert advice, the BA considered that HKBN's Service complied with the criteria for determining whether a service was "a service provided on the Internet", according to the US Federal Networking Council definition of the Internet. The BA concluded that HKBN was not in breach of section 5(1) of the BO. Details of the complaint are at the Annex.
The BA also approved Galaxy Satellite Broadcasting Limited (Galaxy)'s application for changing its current transmission arrangement to enable its television programme service to be carried by the broadband network provided by an affiliate of PCCW Limited (PCCW) or other telecommunications licensees.
In making the decision, the BA took into consideration, among others, the technical feasibility of the proposal, the effect of the proposed arrangement on competition in the pay TV market and that Galaxy would continue to comply with the regulatory requirements under the BO and the licence conditions.
The BA also considered a complaint case, concerning one complaint, substantiated. The case was about the television programme "Midnight Hot" broadcast on the Fashion TV Channel of Hong Kong Cable Television Ltd (HKCTV) and SuperSUN Fashion TV Channel by Galaxy on January 11, 2006 from midnight to 12.50am.
The BA considered that the nudity shots in the programme concerned were excessive, gratuitous and were unacceptable in a channel targeting general viewers. The nudity shots were not contextually justified as the programme was broadcast on a channel labelled for fashion. The BA also considered that the bare-breast shots might be disturbing to some viewers, and that an advisory warning was warranted for the programme concerned.
HKCTV and Galaxy were advised to observe more closely the relevant provisions of the Code of Practice on sex and nudity, provision of programme information, use of clear and unambiguous warnings, and provision of advisory or cautionary announcement for programmes containing material that is likely to disturb some viewers.
The BA also noted that from March 2006 to April 18, 2006, the Commissioner for Television and Entertainment Licensing dealt with 83 cases (791 complaints) under her delegated authority, of which five cases (five complaints) were classified as minor breaches, and 49 cases (757 complaints) as unsubstantiated, under section 11 of the Broadcasting Authority Ordinance; and 29 cases (29 complaints) were outside section 11 of the Ordinance. Please refer to the BA website: www.hkba.hk for details of the complaints.
Annex:
Complaint about the Pay Television Service provided by Hong Kong Broadband Network Limited
Particulars
The Broadcasting Authority (BA) received a complaint that Hong Kong Broadband Network Limited (HKBN) was operating a domestic pay television programme service (HKBN's Service) without an appropriate broadcasting licence, in contravention of section 5(1) of the Broadcasting Ordinance (Cap. 562) (BO). The complainant alleged that HKBN's service did not fall within the exemption stipulated under section 5 of Schedule 3 to the BO because HKBN's service was provided on a private, closed, proprietary network rather than on the open, public and global Internet.
Relevant provision
2. Section 5(1) of the BO provides that "a person shall not provide a broadcasting service except under and in accordance with a licence".
3. Under section 2(1) of the BO, "broadcasting service" includes a domestic pay television programme service. "Television programme service", as defined in the same section, does not include, among others, the provision of a service that consists only of a service that is specified in Schedule 3 to the BO.
4. Section 5 of Schedule 3 states that one of the exempted services is:
"Any service provided on the service commonly known as the INTERNET".
Accordingly, any service consisting only of a service provided on the Internet is not regarded as a "television programme service" within the meaning of the BO, and the provision of such service does not require a licence under the BO. This is referred to as the "Internet Exemption".
Assessment
Interpretation of "the Internet"
5. The BA notes that the BO does not define what is meant by "the Internet".
6. The BA considers that the US Federal Networking Council definition (FNC Definition) of the Internet to be an authoritative and influential definition. The FNC definition reads as follows:
"'Internet' refers to the global information system that:
(i) is logically linked together by a globally unique address space based on the Internet Protocol (IP) or its subsequent extensions/follow-ons;
(ii) is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite or its subsequent extensions/follow-ons, and/or other IP-compatible protocols;
(iii) provides, uses or makes accessible, either publicly or privately, high level services layered on the communications and related infrastructure described herein."
7. The BA notes that, inherent in the FNC definition, any computer (including set-top box)/network can become part of the Internet, provided that the computer/network in substance satisfies three conditions (Internet Requirements):
(i) it can communicate with other computers on the Internet based on the globally unique IP address;
(ii) it supports the TCP/IP; and
(iii) it provides high level services layered on its underlying infrastructure.
Interpretation of "a service provided on the Internet"
8. The BA considers that "a service provided on the Internet" should be taken to mean a service provided on the underlying communications and related infrastructure of the Internet. Taking into account the features of the Internet as characterised in the FNC definition, the BA is of the view that the following should serve as an appropriate set of criteria for determining whether a service is "a service provided on the Internet" (Internet Service Requirements):
(i) the service is targeted at the general public and made available to the public based on the globally unique IP address;
(ii) the service uses the TCP/IP protocols; and
(iii) the service is layered on the underlying infrastructure of the Internet.
HKBN's Service
9. The BA considers that HKBN's Metro Ethernet Network has in substance complied with the Internet Requirements and is part of the Internet given that:
(a) There is no evidence in all the documents available suggesting that computers on HKBN's Metro Ethernet Network are prohibited from communicating with computers outside. From a technical point of view, computers on HKBN's Metro Ethernet Network can generally communicate with other computers on the Internet based on the globally unique IP address. This is consistent with test reports of Office of Telecommunications Authority (OFTA) and HKBN's confirmation that it tends "not to impose any firewall to block the access from other subscribers of other providers or Internet Service Providers".
(b) HKBN's Metro Ethernet Network uses the TCP/IP protocols.
(c) HKBN's Metro Ethernet Network provides high level services (including broadband Internet access, local telephony and TV services).
10. The BA notes that HKBN's Service consists only of a service, which is characterised as follows:
(a) The service is targeted at the general public. The service is made available to both customers directly connected to HKBN's Metro Ethernet Network and customers subscribing to broadband Internet access services of other Internet Service Providers. In both cases, the service is provided to the customers based on the globally unique IP address.
(b) The service uses the TCP/IP protocols.
(c) The service is layered on the underlying infrastructure of the Internet.
11. The service as characterised above has complied with the Internet Service Requirements and is therefore a service provided on the Internet. As such, the BA considers that HKBN's Service consists only of a service provided on the Internet.
Decision
12. By reason of the foregoing, the BA considers that HKBN's Service falls within the Internet Exemption.
Ends/Friday, April 28, 2006
Issued at HKT 15:32
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