starhub cable vision ltd's response to mda second public ...

STARHUB CABLE VISION LTD’S RESPONSE 

TO 

MDA SECOND PUBLIC CONSULTATION PAPER 

“REVIEW OF THE CODE OF PRACTICE FOR MARKET 

CONDUCT IN THE PROVISION OF MEDIA SERVICES” 

6 November 2007

Introduction: 

StarHub Cable Vision Ltd (“StarHub”) welcomes the opportunity to comment on the 

Second Consultation Paper issued by MDA, in regard to the review of the Code of 

Practice for Market Conduct in the Provision of Media Services (“Code”). 

We believe that a clear, workable and effective Code is critical to the growth and 

development of Singapore’s media sector. We broadly support MDA’s move to adopt 

a “market-based” approach for assessing dominance and anti-competitive leveraging. 

Such assessment is both necessary (given the dynamic nature of the market), and is 

in line with international best practice. However, we do have some concerns with the 

manner in which MDA is looking to implement this methodology. 

StarHub has carefully reviewed the proposed Code, and has taken into account: (i) 

StarHub’s experience in operating with the existing Code since 2002; and (ii) 

international best practice for competition codes in the broadcasting sector. StarHub’s 

comments are set out in the attached annexes, and are structured into: 

(a) Section A, which focuses on: 

Dominance (Clause 5); 

Consolidation (Clause 8); and 

Prohibition on Anti-Competitive Leveraging (Clause 4.6) 

(b) Section B, which examines the other clauses of the proposed Code. 

StarHub’s Comments on MDA’s Media Market Conduct Code Review (November 2007) Page 2 of 28

SECTION A 

STARHUB’S COMMENTS TO KEY CLAUSES OF THE PROPOSED CODE 

In considering the proposed Code, StarHub has given particular consideration to 

Clause 5 (Dominance); Clause 8 (Consolidation); and Clause 4.6 (Anti-competitive 

Leveraging). 

StarHub has studied carefully the proposed Code against the Broadcasting Ordinance 

and the Telecommunication Ordinance in Hong Kong, which we believe provide an 

example of international best practice for competition codes. We consider that Hong 

Kong provides a good comparison point, given its liberalised broadcasting market and 

the competitiveness of its info-communications sector. 

We note that the general approach taken by the Hong Kong Broadcasting Authority 

(“HKBA”) and the Hong Kong Telecommunications Authority (“Ofta”) differs from that 

set out in the proposed Code. Whereas the proposed Code appears to review the 

provisions in relation to dominance, anti-competitive leveraging and consolidation in 

isolation (and in some circumstances without providing detailed guidance as to the 

factors MDA will consider in reaching its conclusions), the approach in Hong Kong to 

competition analysis is a three-stage process: 

a) First, to define the relevant market; 

b) Second, to assess the competition in that market to determine the market 

power/dominance of the relevant licensee; and 

c) Third, to assess whether the conduct under review has an anti-competitive 

purpose or effect. 

The Hong Kong Broadcasting Ordinance Guidelines state that these stages cannot be 

reviewed and determined separately – there must be an integrated approach, as there 

is often an overlap of information relevant to each of the three stages. Thus, while the 

proposed Code reviews each of the key issues separately, the approach adopted in 

Hong Kong amounts to a comprehensive analysis of all the competition issues 

together, rather than focusing on one component. The Hong Kong approach ensures 

that a detailed competition analysis is conducted (which properly identifies the relevant 

market, the market power of the relevant licensee, and the impact of that licensee's 

conduct), before determining whether any of the relevant provisions of the 

Broadcasting Ordinance have been breached. The Hong Kong Broadcasting 

Ordinance Guidelines note that this approach is both based on international best 

practice and is consistent with the conceptual approach adopted by other competition 

authorities and regulators. 

The approach set out in the proposed Code, on the other hand, may result in a 

conclusion made without the benefit of a comprehensive, 'fully-informed' market 

analysis approach. Depending on the circumstances, this may adversely impact the 

industry and the operators. 

StarHub believes that the proposed Code would be substantially strengthened if an 

integrated, three-stage, analytical approach (similar to that followed in Hong Kong) 

was adopted. 

StarHub’s specific comments on these clauses are set out below. 


Clause 5.3: Dominant Position 

Clause 5: Concept of Dominance 

Clause 5.3 of the proposed Code states that: “A Regulated Person is in a dominant 

position when it has Significant Market Power in any relevant media market…” When 

determining whether the Regulated Person has Significant Market Power, Clause 

5.3(a) of the proposed Code sets out the factors to be taken into account. The 

proposed Code then provides a rebuttable presumption in Clause 5.3(b) that a 

Regulated Person has “Significant Market Power” if that person has a market share 

greater than 60% in the relevant media market. 

A comparison with the Hong Kong Broadcasting Ordinance Guidelines reveals that a 

licensee is considered to be dominant where the licensee has the potential ability to 

behave in an anti-competitive manner in the relevant market. To determine this, the 

HKBA will assess the degree of market power held by licensees within the relevant 

market. The Guidelines further stress that 'no single piece of evidence can provide a 

reliable indicator of the degree of competition in a market….it will be necessary to look 

at a range of factors in order to build up a picture of the operation of competition in that 

market'. 

The principal factors that the HKBA considers when reaching this determination are: 

a) the behaviour of existing competitors, which includes a review of the market 

share of competitors in that market and the degree of competition between 

them; 

b) the scope of potential competition in that market, which primarily revolves 

around barriers to entry; and 

c) the extent of countervailing buying power and the presence of supplier buying 

power. 

In respect of the market share factor, the Hong Kong Broadcasting Ordinance 

Guidelines provide that there is a presumption of dominance if a licensee has a market 

share persistently above 50%. If, as a result of this analysis, the HKBA determines 

that the constraints on a licensee's conduct are not particularly effective, that licensee 

will be held to be dominant in the relevant market. 

On the other hand, the approach in the proposed Code prioritises the consideration of 

market share when determining whether a Regulated Party has Significant Market 

Power. This is evidenced by the rebuttable presumption and the other factors in 

Clause 5.3(a). The Hong Kong approach, while acknowledging the importance of 

market share when considering whether a party is dominant, emphasises that market 

share is just a 'helpful piece of evidence', providing an 'initial guide' as to whether the 

licensee in question has market power. The Hong Kong Broadcasting Ordinance 

Guidelines also stress that a licensee with a relatively high market share may not hold 

market power. 


In addition, the presumption of dominance within the Hong Kong Broadcasting 

Ordinance is based on a market share persistently above 50%. The Hong Kong 

Broadcasting Ordinance provides an example of 12 months as the period of time 

which amounts to “persistently”. The Hong Kong Broadcasting Ordinance also states 

that if a licensee in a television programme service market has a market share below 

40%, that licensee is unlikely to be dominant. 

However, the proposed Code lacks such qualifying statements in relation to market 

share, which could adversely impact its determination of whether a Regulated Person 

is dominant. While acknowledging the importance of market share, the Hong Kong 

Broadcasting Ordinance Guidelines emphasise that market share should not be to the 

exclusion of other considerations when determining whether a person has dominance 

in a market. 

StarHub believes that the proposed Code would benefit from following the Hong Kong 

approach, of specifying that market share is simply one piece of evidence to be 

considered in any assessment of dominance, and that a full range of factors needs to 

be taken into account in any assessment of dominance or Significant Market Power. 

We believe that including this statement in the proposed Code would provide for more 

robust and reliable assessments of dominance or Significant Market Power. 

In addition, from a drafting perspective, Clause 5.3 of the proposed Code provides 

that, in determining whether a party has Significant Market Power, regard will be given 

to the factors set out in Clause 5.3(a)(i) to 5.3(a)(vii). However, Clause 5.3(a)(vii) 

states that one of those factors is 'the extent to which the Regulated Person's ability to 

exercise Significant Market Power in the relevant media market is constrained by…..'. 

We would highlight that this definition is circular (Significant Market Power is assessed 

pursuant to Clause 5.3(a)(vii), and Clause 5.3(a)(vii) is dependent on Significant 

Market Power); and would propose that these provisions be redrafted to avoid any 

ambiguity as to the intention of the clause. 

Definition of Relevant “Media Market” 

StarHub notes that the term “media market(s)” is used extensively throughout the 

proposed Code. In particular, Clause 5.3(a) of the proposed Code specifies that one 

of the factors to be considered in determining whether a Regulated Person has 

Significant Market Power is the 'proper definition of the relevant media market which 

includes all reasonable substitutes'. However, the proposed Code fails to define what 

constitutes a relevant “media market”, and fails to specify what factors will be taken 

into consideration when determining the relevant media market. 

This silence will lead to uncertainty in the market as to the application of the proposed 

Code. 

By way of comparison, the Hong Kong Broadcasting Ordinance Guidelines go into 

considerable detail as to how media markets should be defined. As a starting position, 

the Guidelines state that the HKBA considers that a 'television programme service 

market' refers to a downstream market or markets for the provision of television 

programme service to the general public or a smaller segment of the public. This is 

based on the definition of 'television programme service'; the services that are 

governed by the Hong Kong Broadcasting Ordinance; and the scope of the anticompetition 

provisions of that Ordinance. The HKBA has held that the Hong Kong 

Broadcasting Ordinance does not attempt to regulate any upstream market – it is only 

concerned with downstream markets, such as the domestic pay television services 


market, or the domestic free television services market, or a combination of both being 

a separate market. 

The Hong Kong Broadcasting Ordinance Guidelines take a traditional method of 

defining a market. Firms that constrain each other through the supply of close 

substitutes are said to compete in the same market. The process of defining a market 

requires the identification of close substitutes, both from the demand-side and the 

supply-side. 

In assessing the scope for demand-side substitution, the HKBA will take into account 

the following factors: 

a) evidence as to how customers reacted to previous changes in relative prices; 

b) the extent to which consumers incur costs in switching between services; or 

c) evidence that suppliers base business decisions on the prospects of consumer 

substitution between products in response to relative price changes. 

When determining whether there are any supply-side substitutes, the HKBA will have 

regard to: 

a) the technology available and other requirements required to offer a product or 

service of comparable function into the market under review; 

b) any spare capacity within the industry; 

c) information on the willingness of consumers to switch to new suppliers 

following a small but significant and non-transitory increase in price, possibly 

via market research; and 

d) information on past supply-side substitution and that in similar markets in other 

countries. 

As noted in StarHub’s first submission to MDA, if end-consumers regard other goods 

or services as reasonably good substitutes for the StarHub’s offerings, then such 

substitutes have to be included in the same media market, and the proposed Code 

should take this into consideration. 

As a subscription television licensee, StarHub faces vigorous and effective competition 

from a variety of sources, including Free-to-Air TV, IPTV, VOD, home video sales and 

rentals, and wireless cable service operators. 

The lack of a clear definition in the proposed Code as to what will be considered the 

relevant “media market” will result in confusion. It could potentially lead to inconsistent 

interpretations by the Authority and the Regulated Persons, thereby giving rise to 

conflicts among all affected parties. 

StarHub strongly believes that Clause 5.3(a) of the proposed Code should be modified 

to look beyond a single media market, when assessing dominance. Instead, we 

submit that MDA should assess dominance, taking into account such factors as the 

supply, cost and perceived attractiveness of substitute goods or services (as is done in 

Hong Kong). 


We would also highlight that Section 8.3 of IDA’s “Code of Practice for Competition in 

the Provision of Telecommunication Services 2005” (“Telecoms Code”) has helpfully 

acknowledged that, when considering dominance and competition issues, it is 

necessary to assess beyond the telecom market, rather than segregating the market 

artificially based on type of service offered. It is unclear why the Telecoms Code and 

the proposed Code should take different approaches in defining markets, and StarHub 

would respectfully submit that it is important for the two Codes to be aligned on this 

point. 

In reviewing the proposed Code, we strongly believe that MDA should clarify and 

specify the factors it will adopt to determine the relevant “media market”, to enable an 

accurate interpretation of the Code. 

Transitional Provisions 

StarHub is disappointed to note that, under Clause 11.5.1 of the proposed Code, the 

“Media Development Authority of Singapore (Regulated Persons) (Dominant and Non- 

Dominant Positions) Notification 2003” would continue to apply. 

The objective of the proposed Code is to implement a robust and market-based 

assessment methodology for determining dominance and Significant Market Power. It 

is therefore unclear why the proposed Code has not followed this approach for major 

areas of the media sector. It is clear that the media market is evolving very rapidly in 

Singapore, and that dominance assessments carried out over four years ago may well 

be irrelevant in a number of scenarios. 

StarHub strongly believes that if Regulated Persons are to be considered to have 

“Significant Market Power” under the proposed Code, the analysis leading to that 

decision should be based on Clause 5 of the proposed Code, rather than under a 

Notification made in 2003. 

Reliance on a dominance assessment made over four years in the past could lead to 

mistaken regulatory decisions and to distortions to the Singapore market. StarHub 

therefore respectfully submits that Clause 11.5.1 of the proposed Code should be 

deleted, and that any assessments of dominance and Significant Market Power must 

be considered pursuant to Clause 5 of the proposed Code. 


Clause 8 – Consolidation 

The consolidation provisions in the proposed Code can be broadly separated into the 

following elements: 

a) administrative procedures, dealing with the application to MDA in respect of a 

consolidation, and the information to be provided with such an application; 

b) the analytical framework – that is, the impact on competition of the 

consolidation; and 

c) the conditions that can be imposed by MDA when granting approval to a 

consolidation. 

StarHub would offer its comments on these three stages. 

Administrative Procedures 

Under Clause 8.4 of the proposed Code, Regulated Persons entering into a 

Consolidation must obtain MDA’s prior written approval (i.e. on an ex ante basis). 

This provision differs from both the Telecoms Code and the Hong Kong 

Telecommunications Ordinance Guidelines, which permit consolidations to be 

considered on both an ex ante and ex post basis, with the expectation that the most 

common analysis conducted will be ex post (i.e. after the event). 

The approach taken in Hong Kong, and by the IDA, reflects a realistic understanding 

that consolidations are often highly confidential with potentially substantial impacts on 

the valuations of the companies involved. By adopting an ex ante regime only, MDA 

may be artificially restricting corporate merger and acquisition activities in Singapore, 

as parties may become reluctant to consider a merger or acquisition if they must first 

obtain MDA approval prior to completing that transaction. This issue is exacerbated by 

the relative lack of detail in the proposed Code as to how the consolidation provisions 

will be implemented (for example, the factors that must be considered when identifying 

the relevant market). 

StarHub suggests that, provided that there are sufficient remedies available to MDA 

and sufficient flexibility in the conditions that MDA can impose, the competitive 

analysis of consolidations should be conducted ex post as well as ex ante. Such a 

move would align the proposed Code with the Telecoms Code, and would provide a 

degree of commercial flexibility to parties considering a consolidation. 

In addition, it is important to note that the Hong Kong Telecommunications Ordinance 

Guidelines set out the specific type of information that Ofta will require when 

conducting its analysis of the effect of a consolidation. Similarly, the procedures that 

IDA will follow in considering consolidations in the Singapore telecommunications 

market have been detailed in IDA’s “Advisory Guidelines Governing Consolidation 

Review Process under Section 10 of the Code of Practice for Competition in the 

Provision of Telecommunication Services 2005”. In comparison, the proposed Code 

only provides a general description of the information that should be submitted. 


StarHub would therefore submit that it would be helpful for all parties if the proposed 

Code could set out the detailed procedures MDA intends to follow in considering 

Consolidations, as well as the information that parties will have to set out in 

consolidation requests. This would help to ensure that the competition analysis can be 

conducted in a comprehensive and timely manner. 

Analytical Framework 

Application of provisions 

The relevant consolidation provisions in Clause 8 of the proposed Code apply to any 

consolidation between a Regulated Person and: 

a) another Regulated Person; or 

b) an Ancillary Media Service Provider. 

The merger and acquisition provisions of the Telecommunications Ordinance in Hong 

Kong only apply where there has been a 'change in relation to a carrier licensee'. 

Thus, the application of the merger and acquisition provisions of the 

Telecommunications Ordinance in Hong Kong is much narrower than that of the 

proposed Code – it will only apply where the entity that is being acquired or is being 

merged with is a carrier licensee. 

In contrast, the proposed Code’s requirements extend beyond the Regulated Person 

to include all “Ancillary Media Service Providers”; who will not be MDA’s licensees, 

thereby resulting in an inefficient “over-reaching” of the Code. 

As there is no definition or clarification as to what a media service comprises, the 

extension of the consolidation provisions to cover Ancillary Media Service Providers 

creates significant ambiguity. For example, if StarHub intends to enter into a 

consolidation with a power-line supplier, would it need to seek MDA’s prior approval? 

This is on the basis that a power-line is capable of transmitting broadcast signals, it 

may thus be considered as an “Ancillary Media Service Provider”, even though this 

consolidation may have no bearing on StarHub’s broadcasting service. 

Given that Part X of the Broadcasting Act has already adequately covered all aspects 

pertaining to the ownership and control of a broadcasting company, we strongly 

believe that Clause 8 of the proposed Code should be confined to any consolidation 

involving a Regulated Person with another of MDA’s media licensees. StarHub submit 

that the reference to “Ancillary Media Service Provider” should be removed from the 

proposed Code. 

In addition, Clause 8.4.1(c) of the proposed Code would capture the purchase of a 

Regulated Person’s assets by another person as a “Consolidation”. This would mean 

that any purchase of non-media related assets, regardless of the scale of the 

transaction, would be caught. Any person who purchases any assets from a 

Regulated Person, even if the purchase was of small scale or involved non-media 

assets, would require MDA’s prior written approval. This obligation differs 

considerably from the requirements of Section 10.4.1(b) of the Telecoms Code, which 

only requires IDA approval where the acquiring party “acquires all or substantially all of 

the assets of the Licensee”. 


In order to align the proposed Code with the Telecoms Code, and to ensure the 

proposed Code has an appropriate materiality threshold, StarHub submits that Clause 

8.4.1(c) should be amended to refer to: 

“The acquisition of all or substantially all of the media assets of the Regulated 

Person …” 

'Safe harbour' analysis 

In Hong Kong, the Telecommunications Ordinance Guidelines provide a 'safe harbour' 

analysis where there has been a merger or an acquisition (that is, where two persons 

cease to be distinct entities). This amounts to an acknowledgement by Ofta that not 

all consolidations will necessarily result in a lessening of competition in that market, 

particularly where there is sufficient competitive behaviour in that market from those 

competitors remaining in that market. In addition, the Hong Kong Telecommunications 

Ordinance will screen all consolidations to determine whether any further detailed 

analysis is required by using the four-firm concentration ratio (“CR4”) and the 

Herfindahl Hirschmann Index (“HHI”). 

Under the CR4 test, Ofta is unlikely to intervene, if: 

a) the post-merger combined market share of the four (or fewer) largest firms 

(CR4) in the relevant market is less than 75%, and the merged firm has a 

market share of less than 40%; or 

b) if the CR4 is 75% or more, and the merged firm’s market share is less than 

15%. 

In any event, if the post-merger combined market share of the parties to the 

transaction is 40 per cent or more, it is likely that Ofta will investigate the competition 

effect of the transaction. 

Under the HHI test, Ofta is unlikely to intervene if: 

a) the post-merger HHI of the relevant market is less than 1,000, as this indicates 

that the market is not concentrated; 

b) the post-merger HHI of the relevant market is between 1,000 and 1,800 and 

the proposed transaction would only raise the HHI by less than 100; and 

c) the post-merger HHI of the relevant market is more than 1,800 and the 

proposed transaction would only raise the HHI by less than 50. 

While the proposed Code uses a variation of the CR4 test adopted in Hong Kong, 

StarHub believes that the addition of the HHI analysis would provide additional useful 

guidance to Regulated Persons prior to any consolidation being contemplated. 


Clause 4.6 – Prohibition on Anti-competitive Leveraging 

Clause 4.6 of the proposed Code deals with the prohibition on anti-competitive 

leveraging. This prohibition falls under the general discussion in the proposed Code 

on prohibitions of unfair methods of competition, and extends to any media market. 

The Hong Kong Broadcasting Ordinance Guidelines consider this concept in their 

discussion on the abuse of a dominant position. The Hong Kong Broadcasting 

Ordinance Guidelines refer to this situation as a cross-subsidy, where a licensee 

leverages its dominance in one market into a market where it is non-dominant. 

However, consistent with the Hong Kong Broadcasting Ordinance itself, the Guidelines 

are only concerned where such activity has the purpose or effect of unreasonably 

preventing, distorting or substantially restricting competition in a television programme 

service market (and not the broader media market). 

The Hong Kong Broadcasting Ordinance Guidelines also specifically note that the 

receipt of a cross-subsidy is not (of itself) an infringement of the anti-competition 

provisions. In fact, the Broadcasting Ordinance Guidelines acknowledge that crosssubsidies 

can be pro-competitive in certain circumstances. 

The Hong Kong Broadcasting Ordinance Guidelines detail the circumstances in which 

financial transfers may amount to a breach of the prohibition of cross-subsidies. The 

Guidelines specifically refer to situations where the licensee's revenues from an 

activity in a market in which it is not dominant fail to cover the costs associated with 

that activity over the economic lifetime of the relevant product or service. The 

Guidelines specify that reference must be made to future revenues as well as past 

losses. 

By way of comparison, Clause 4.6(b) of the proposed Code merely acknowledges that 

MDA will assess each incidence of potential anti-competitive leveraging on a case-bycase 

basis. 

The proposed Code does not set out the assessment criteria MDA intends to follow, 

and the circumstances in which MDA would or would not consider being in breach of 

the proposed Code. 

To reduce possible ambiguity as to what leveraging activities would amount to a 

breach of the proposed Code, StarHub would strongly submit that the proposed Code 

should establish a set of practical and workable guidelines which would clearly set out 

the factors MDA will consider in assessing anti-competitive leveraging behaviour. 


SECTION B 

STARHUB’S COMMENTS TO OTHER CLAUSES OF THE PROPOSED CODE 

Clause 1.1 - “This Code is intended to: (a) enable and maintain fair market conduct 

and effective competition in Singapore’s media industry” 

StarHub would note that the terms “Singapore’s media industry” and “media industry” 

are used extensively throughout the proposed Code (for example, in Clauses 1.6, 1.8, 

4.8, 7.1, 7.3, and 7.7). However, neither of these terms is defined. By way of 

comparison, the existing Code refers to “Mass Media Services Markets”, which is a 

defined term. 

The terms “Singapore’s media industry” and “media industry” are used to define the 

objectives of the proposed Code, and the considerations to be given in assessing anticompetitive 

agreements. We therefore strongly submit that it is necessary for the 

proposed Code to define “Singapore’s media industry” and “media industry”. For the 

sake of consistency with the existing Code, we would suggest that the definition of 

these terms be linked to the definition of “Regulated Persons”. 

Clause 1.5(b)(iii) - “Ancillary Media Service” means the provision of infrastructure, 

systems, services, information or other resources that are used or intended to be used 

in connection with the provision or delivery of any media service. Examples of such 

Ancillary Media Services include video programmes production and newspaper 

distribution. 

It is important for all Regulated Persons to have a clear understanding of the relevant 

clauses of the proposed Code, so as to encourage compliance and facilitate 

implementation of the Code. StarHub would therefore propose to remove ambiguous 

terms, and to revise the above clause to: 

“Ancillary Media Service” means the provision of infrastructure, systems, services, 

information or other resources that are used or intended to be used in connection with 

the provision or delivery of any media service. Examples of such Ancillary Media 

Services include video programmes production and newspaper distribution. 

If this amendment is not made, it is likely that there will be disagreement and ambiguity 

as to the potential “intended” uses of various systems, services, etc. 

Clause 1.5(b)(ix) - “Consolidation Application Fee” means the fee specified in 

paragraph 8.9 of this Code. 

Clause 8.9 - Each Consolidation Application must be accompanied by a certified 

cheque, directing payment to MDA, in the amount of S$10,000. 

All Regulated Persons are already subject to a licence fee payment to MDA, and 

StarHub understands that the objective of this licence fee is for MDA to recover its 

costs in administering the licences and performing its various regulatory functions. 

StarHub would note that: 


The licence fee MDA levies on broadcasters is up to 2.5% of a broadcaster’s 

total income (as compared to IDA’s FBO licence fee of 1% of an operator’s 

Annual Gross Turnover); 

Reviewing the consolidation applications of its licensees must be considered 

one of MDA’s core regulatory function; and 

Other regulatory agencies, such as IDA, do not levy such fees. 

StarHub would therefore submit that Clause 8.9 of the proposed Code should be 

deleted. 

Clause 1.5(xi) - “Consumer” means an end-consumer, and/or person that buys goods 

and/or services as inputs for production or for resale, as the context demands. 

While StarHub notes that the definition of a “Consumer” has been modified since the 

first consultation, StarHub submits that this definition is still fundamentally flawed. 

First, this definition fails to recognise that Regulated Persons will provide a range of 

services, not all of which will be media services. For example, StarHub Cable Vision 

provides telecommunications services (such as wholesale broadband access), under 

the regulatory oversight of IDA. However, under the proposed definition, any customer 

of the Regulated Person will become a “Consumer” pursuant to the Media Code, even 

if that person is not purchasing media services. 

Second, the definition of “Consumer” under the proposed Code differs from that 

defined in MDA’s (Standards of Performance) (Termination of Contracts) (“SOPTOC”). 

Under SOPTOC, “Consumer” is defined as “any person who is party to a contract with 

a Licensed Entity for the reception of any broadcasting service provided by the 

Licensed Entity, or for the provision, installation or maintenance by the Licensed Entity 

of any apparatus, plant or facility to be used by that person for the reception of any 

other broadcasting service (including any FTA broadcasting service).” We believe that 

the SOPTOC definition of “Consumer” is more workable than the definition of 

“Consumer” under the proposed Code. 

Third, the definition of “Consumer” is still both broad and ambiguous. It is unclear 

under what “context” the definition would define Consumer as an end-consumer, and 

when it would define a Consumer as a reseller. This lack of certainty will create 

disputes between parties unless it is clarified. 

For the sake of consistency and clarity, StarHub submits that the definition of 

“Consumer” should refer to “end-users”, where end-users are defined as “a business 

or residential user of any media services in Singapore”. 

Clause 1.5(b)(xvii) – “Essential Resources” means any apparatus, accessory, system, 

service, information or such other resource of any kind, used or intended to be used in 

connection with the provision or delivery of any media service provided by a Media 

Licensee, and which satisfies the criteria set out in paragraph 9.3.1.5 or 9.3.1.6 of this 

Code and is specified by MDA as an Essential Resource pursuant to section 18(2) of 

the MDA Act. 


StarHub is concerned that, under the proposed Code, MDA can determine the scope 

of what constitutes, or is “intended to be”, an Essential Resource. As commercial 

entities, it is important for Regulated Persons to retain the primary right to control and 

manage their infrastructure, and to allocate their capital resources. It is also important 

that the Regulated Persons have a certainty level over the control of their resources. 

As highlighted previously, the lack of definition of what the term “media service” would 

encompass would aggravate the vagueness and uncertainty to all Regulated Persons. 

Such a broad and vague obligation, in which MDA can designate any service or 

network as an “Essential Resource”, would create considerable uncertainty in the 

industry, and reduce the incentive for the Regulated Persons to upgrade or enhance 

their relevant network infrastructure. 

StarHub therefore respectfully suggests that “intended to be used” should be deleted, 

and that greater detail be provided as to the definition of “Essential Resources” and 

the process to be used for determining such resources. 

Clause 1.5(b)(xxxi) – “subscription fee” means any form of consideration. 

StarHub believes that the wording “any form of consideration” is unnecessarily vague, 

and could generate confusion. For example, in exchange for receiving free television 

services, a customer will be exposed to extensive advertising from the service 

provider. Given the ambiguous definition under the proposed Code, it is unclear 

whether this form of exchange would be considered as “subscription fee”. 

StarHub therefore submits that the definition of “subscription fee” should be confined 

to a recurring fee in exchange for the provision of a service, and should not include 

unrelated hardware cost or installation fee. This approach is consistent with Clause 

3.4.2 of the proposed Code which specifies that “A Regulated Person may only charge 

any Subscriber for the specific Subscription Service or associated equipment that the 

said Subscriber has ordered.” 

StarHub would therefore propose to amend the definition of “subscription fee” to “any 

form of recurring payment of fees and charges for receipt of a media service, excluding 

unrelated hardware costs and installation fees consideration.” 

Clause 1.5(b)(xxxii) – “Subscription Service” means a service provided by a 

Regulated Person to a Consumer upon the payment of a subscription fee 

As noted above, Regulated Persons will provide a range of services to customers, and 

not all of those services will be media services. For example, StarHub Cable Vision 

provides telecommunications services (such as wholesale broadband access), under 

the regulatory oversight of IDA. However, under the proposed definition, any service 

provided by a Regulated Person to a Consumer becomes a “Subscription Service”, if a 

subscription fee is paid, regardless of whether it is a media service or not. 

StarHub therefore strongly believes that it is necessary to amend this definition to: 

“Subscription Service” means a service provided by a Regulated Person, under 

a licence issued by the Authority, to a Consumer upon the payment of a 

subscription fee” 


Clause 1.5(b)(xxxiii) - “Subscription Television Licensee” refers to any person 

licensed to provide subscription nationwide television services, subscription localised 

television services or video-on-demand services pursuant to the Broadcasting Act 

(Cap. 28). 

Following MDA’s recent formalisation of its Broadcasting IPTV Licensing Framework, 

we would submit that the term “localised” should be replaced with “niche”, to reflect the 

updated definitions in the licensing framework. This change should also be made to 

Clause 1.5(b)(xx) and 1.5(v)(xxxiv). 

Clause 1.6.4(a) – MDA will endeavour to apply the provisions of this Code in a 

transparent manner. In general, MDA will 

(i) provide an opportunity to respond to persons who are the parties to any valid 

complaint or who are directly affected by any decision of MDA; 

It is likely that many MDA decisions will impact on a range of Regulated Persons, 

directly and indirectly. By restricting responses to persons who are “directly affected”, 

this clause may restrict feedback and prevent a comprehensive review of the issue. 

We would note that Section 59(1) of the Broadcasting Act states that “Any licensee 

aggrieved by (a) any decision of the Authority in the exercise of any discretion vested 

in it by or under this Act; or (b) anything contained in any Code of Practice or direction 

issued by the Authority, may appeal to the Minister.” There is no suggestion under 

Section 59(1) that only directly affected parties should have the right to be heard. 

For consistency purposes, and to ensure that all parties affected by a decision are 

able to provide their input, StarHub would submit that word “directly” should be deleted 

from this Clause. 

Clause 1.6.8(b) - However, the phenomenon of convergence is in its early stages, with 

different platforms subject to differing degrees of competition. Therefore, objective 

application of these principles may result initially in the imposition of different 

regulatory obligations on Regulated Persons which utilize different platforms. In certain 

cases, public interest may require the imposition of special obligations on Regulated 

Persons who use different platforms. 

As the proposed Code is intended to regulate the behaviour of operators and the 

services offered by the operators in Singapore, it is only appropriate for the proposed 

Code to treat all operators (and all service platforms) in a non-discriminatory manner. 

The imposition of discriminatory regulatory obligations would create uncertainty and 

distortions, and discourage investment in the sector. StarHub therefore strongly 

submits that Clause 1.6.8(b) should be deleted in its entirety. 


Clause 1.7.1 - At least once every 3 years, MDA will review this Code to ensure the 

effective attainment of MDA’s goals. As part of the triennial review process, MDA will 

provide an opportunity for industry and public comment. The duration of any public 

consultation exercise will provide appropriate time for consideration of any change to 

the Code and for consultees to construct a response. 

StarHub believes that the sentence in the original Code is more practical and 

applicable, given the pace of change in the broadcasting market. 

StarHub would therefore propose to reinstate the sentences from the original Code: 

“At least once every 3 years, the MDA will review this Code. As part of the 

triennial review process, the MDA will provide an opportunity for industry and 

public comments. The MDA will eliminate or modify provisions that it 

determines are no longer necessary. For example, a provision may no longer 

be necessary where: 

(a) the growth of competition makes it possible to rely on market forces, 

rather than regulation; 

(b) changed policy concerns eliminate the need for regulation; or 

(c) experience demonstrates that the MDA can achieve its goals in a more 

efficient or effective manner.” 

Clause 2.6.2.2(c) – If no other Free-to-Air Television Licensee agrees to acquire the 

rights on these terms within 3 weeks of the offer, the Free-to-Air Television Licensee 

must offer to make the rights to broadcast the programme available, on similar terms 

specified above, to any Subscription Television Licensee. The Free-to-Air Television 

Licensee, or any person negotiating on its behalf, must use its best efforts to limit the 

extent to which licences with any rights holder restrict the ability of the Free-to-Air 

Television Licensee to comply with the requirements contained in paragraph 2.6. 

Given that there is only one Free-To-Air Television Licensee in the market, we believe 

that this clause is inappropriate and should be deleted in its entirety. We do not 

believe there is any reason to give a-priori preference to Free-To-Air Television 

Licensees, given the number and reach of subscription television licensees in the 

Singapore market. 

Clause 3 - Regulated Persons’ Duties to End-Consumer 

As Clause 3 deals with the Regulated Persons’ duties to their end-users, all references 

of “Subscribers” and “Consumers” in this clause need to be amended to refer to “enduser” 

for reasons of standardisation and consistency. The use of different terms will 

simply create ambiguity and uncertainty. 

Clause 4.4.2(b) - A Regulated Person must not take any action, or induce any other 

person to take any action, that has the effect of either: 

(b) has the effect of raising the other Media Licensee’s costs of providing such media 

service, without a legitimate business, operational or technical justification. 


There is a typographical error in this clause, as the statement “has the effect of” is 

repeated. 

In addition, given that MDA has already revised the Code to refer to “Regulated 

Person”, the reference to “Media Licensee” should be amended for reasons of 

consistency. 

StarHub would therefore propose to amend this clause to state: 

“A Regulated Person must not take any action, or induce any other person to 

take any action, that has the effect of either: 

(b) has the effect of raising the other Media Licensee’s Regulated Person’s 

costs of providing such media service, without a legitimate business, 

operational or technical justification.” 

Clause 4.4.3 - Whilst Regulated Persons are not required to disclose proprietary or 

commercially sensitive information to their competitors, a Regulated Person must not 

provide false or misleading information if it will unreasonably restrict competition in any 

media market in Singapore. 

StarHub believes that the deliberate provision of misleading information should be 

prohibited. We would highlight that the proposed wording of clause 4.4.3 implies that 

a Regulated Person can provide false and misleading information, provided that it 

does not unreasonably restrict competition in the market. StarHub would therefore 

suggest amending Clause 4.4.3 as follow: 

“Whilst Regulated Persons are not required to disclose proprietary or 

commercially sensitive information to their competitors, a Regulated Person 

must not provide false or misleading information to another Regulated Person. 

if it will unreasonably restrict competition in any media market in Singapore.” 

Clause 5.3(vii)(D) – the extent to which the Regulated Person’s ability to exercise 

Significant Market Power in the relevant media market is constrained by: 

(D) the ability of Ancillary Media Service Providers to switch to alternative Consumers. 

The definition in the proposed Code of “Ancillary Media Service Providers” focuses on 

the provision of infrastructure, systems, services or other resources for the provision or 

delivery of media services. “Ancillary Media Service Providers” may have no 

relationship at all with “Consumers” (as defined under the proposed Code). It is likely 

that “Ancillary Media Service Providers” would deal with broadcasting operators, rather 

than with end-users and resellers. StarHub would therefore submit that this clause 

should be reverted to its original wording: 

“Clause 5.3(vii)(D) – the extent to which the Regulated Person’s ability to 

exercise Significant Market Power in the relevant media market is constrained 

by: 

(D) the ability of Ancillary Media Service Providers to switch to alternative 

clients Consumers.” 


Clause 5.6.1.2 – MDA will exempt a Dominant Person from specific obligations 

applicable to Dominant Persons, in some or all media markets in which the Dominant 

Person participates, in any case in which the Dominant Person demonstrates that 

compliance with the obligation is not necessary to prevent it from carrying out 

unilateral anticompetitive conduct, such as unilaterally raising prices charged above 

competitive levels, reducing prices paid below competitive levels, reducing quality, 

imposing unreasonable contract terms, excluding competitors from the market, or 

otherwise acting independently of competitive market forces. 

As noted above, it is important for the proposed Code to clearly set out the obligations 

on parties subject to the Code. If this is not done, the proposed Code will simply 

create disputes and uncertainty. However, the proposed Clause 5.6.1.2 removes 

certainty from the proposed Code, as it obfuscates what will be considered anticompetitive 

conduct. StarHub therefore submits that this clause should revert to its 

original wording: 

“MDA will exempt a Dominant Person from specific obligations applicable to 

Dominant Persons, in some or all media markets in which the Dominant 

Person participates, in any case in which the Dominant Person demonstrates 

that compliance with the obligation is not necessary to prevent it from carrying 

out unilateral anticompetitive conduct, such as unilaterally raising prices 

charged above competitive levels, reducing prices paid below competitive 

levels, reducing quality, imposing unreasonable contract terms, excluding 

competitors from the market, or otherwise acting independently of competitive 

market forces.” 

Clause 6.1 – As they are not subject to competitive market forces, Dominant Persons 

will be subject to additional regulatory obligations and prohibitions designed to prevent 

them from using their market position in a manner that will harm Consumers or 

unreasonably restrict competition in any media market in Singapore. 

Given the Code is subject to the Singapore’s jurisdiction, and is for regulating the local 

operator’s conduct in Singapore, we believe that the reference to “in Singapore” is 

redundant and should be deleted. 

Clause 6.3.1 – A Dominant Person must provide its media service, upon reasonable 

request, to any prospective Consumer. 

StarHub would highlight that there are instances when the Dominant Person may well 

be unable to provide its service, for reasons such as: 

(a) where the consumer provides the Regulated Person with incorrect, false, or 

misleading information; 

(b) where the consumer becomes (or threaten to become) bankrupt or insolvent, or 

prepares to go into liquidation; 

(c) where the consumer has defaulted on payment to any Regulated Person or its 

affiliates; 


(d) where it is not practically possible for the Regulated Person to serve the consumer 

(for example, the infrastructure necessary for service provision is not available); 

(e) where the potential consumer is abusive or threatening to the staff of the 

Regulated Person; 

(f) where the provision of service will constitute a breach of a Court Order; a material 

breach of legislation, regulations or contract; and 

(g) where provision of the service will subject the Regulated Person to litigation risk. 

We therefore submit Clause 6.3.1 should be deleted, and that any request for service 

should be covered in the contractual terms between the Regulated Person and the 

Consumer. 

Clause 6.3.3(a)(ii) – A Dominant Person must provide any Media Licensee with the 

ability to purchase advertising capacity to promote its media service(s) on reasonable 

and non- discriminatory prices, terms and conditions. However, advertising capacity 

may be declined on reasonable grounds which include, but are not limited to, the 

following: 

(ii) in cases that credit checks carried out on the Consumer reveal a bad credit rating 

at the time of application. 

As this clause pertains to the purchase of advertising capacity by the Regulated 

Person, it should be amended to apply to “advertising client” instead of the 

“Consumer”, as defined under the proposed Code: 

“A Dominant Person must provide any Media Licensee Regulated Person with the 

ability to purchase advertising capacity to promote its media service(s) on reasonable 

and non- discriminatory prices, terms and conditions. However, advertising capacity 

may be declined on reasonable grounds which include, but are not limited to, the 

following: 

(ii) in cases that credit checks carried out on the client of an Advertiser reveal a bad 

credit rating at the time of application.” 

Clause 6.4.1 - A Dominant Person must not use its position in the media market in a 

manner that restricts competition in, or has the intended cause or actual effect of 

preventing, restricting or distorting competition in any media market or Ancillary Media 

Services market. 

StarHub believes that this Clause should prohibit anti-competitive behaviour that 

unreasonably and substantially restricts competition. As it is currently worded, if 

competition from a Dominant Person drives an inefficient operator out of the market, 

this could be interpreted as a breach of Clause 6.4.1. StarHub therefore proposes to 

amend this Clause to: 

“A Dominant Person must not use its position in the media market in a manner 

that unreasonably and substantially restricts competition in, or has the intended 

cause or actual effect of preventing, restricting or distorting competition in any 

media market or Ancillary Media Services market.” 


This amendment will also align this Clause with the wording in the rest of the proposed 

Code. 

Clause 6.4.2.3 - A Dominant Person must not, expressly or effectively, require a 

Consumer who wants to purchase any media service, or an Advertiser who wants to 

purchase advertising capacity, to additionally purchase or lease any other separate 

service, advertising capacity, or equipment, as a condition for purchasing the media 

service or advertising capacity, whether provided by the Dominant Person or another 

person. However, the Dominant Person may offer Consumers or Advertisers the 

option of purchasing such group selling/packaging services where the purchase of 

such a package is not mandatory, and the separate services, advertising capacity or 

equipment comprised within the package can be purchased individually. 

One of the basic features of subscription television services is that customers must 

subscribe to a basic tier package before they are able to subscribe to any additional 

premium channel(s). This is a common practice across the region from operators in 

Hong Kong, Malaysia, Australia, UK, and the US. Subscription television operators 

are also bound by upstream contractual arrangements with content providers to 

bundle specific channels together as a package, as part of conditions for the carriage 

of the channels. In such cases, it will not be possible for the subscription television 

operator to unilaterally unbundle its basic package, without breaching its contractual 

arrangements. 

With reference to Hong Kong, we would highlight that the Broadcasting Ordinance 

Guidelines state that the HKBA does not consider bundling per se to be anticompetitive. 

Rather, the Guidelines contemplate that bundling is only anti-competitive 

where there is tying of supply of one service in a market which the supplier is not 

dominant to the supply of another service in a market which the supplier is dominant. 

The Hong Kong Broadcasting Ordinance does not consider bundling of different pay 

TV channels as being anti-competitive. 

StarHub would therefore submit that Clause 6.4.2.3 should be deleted. 

If MDA is not willing to delete this clause we believe that this Clause should at least be 

aligned with the equivalent clause in IDA’s Telecom’s Code (Section 4.2.1.3 of the 

Telecoms Code). Aligning the clauses would leave Clause 6.4.2.3 as: 

“A Dominant Person must not, expressly or effectively, require a Consumer 

who wants to purchase any media service, or an Advertiser who wants to 

purchase advertising capacity, to additionally purchase or lease any other 

separate service, advertising capacity, or equipment, as a condition for 

purchasing the media service or advertising capacity, whether provided by the 

Dominant Person or another person. However, the Dominant Person may offer 

Consumers or Advertisers the option of purchasing a package that contains 

other separate service, advertising capacity, or equipment.” 

Clause 7.5.2 – Agreements in which a Regulated Person agrees with another 

Regulated Person or Ancillary Media Service Provider to coordinate separate bids for 

any right that may be auctioned by MDA, or for any asset, resource, advertising 

capacity, good, service, or for any Ancillary Media Service, regardless of the price 

levels agreed to. 


StarHub understands that the purpose of this clause is to prevent anti-competitive 

behaviour between Regulated Persons in the provision of service to the end-user. 

However, as it is currently worded, this clause could prevent collaboration resulting in 

benefits for end-users. StarHub would therefore submit that MDA should identify and 

include circumstances which would be exempted from this Clause. 

Clause 7.5.5(b) - Agreements with Ancillary Media Service Providers regarding either 

the price at which: 

(b) a “downstream” distributor will resell any Regulated Person’s media service, where 

this would prevent, restrict or distort competition in any media market. 

Similar to Clause 6.4.1 above, while fair and viable competition is strongly 

encouraged, agreements which “unreasonably” restrict competition should be 

prohibited. We therefore submit that Clause 7.5.6 should be revised as follow: 

“Agreements with Ancillary Media Service Providers regarding either the price 

at which: 

(b) a “downstream” distributor will resell any Regulated Person’s media 

service, where this would unreasonably prevent, restrict or distort competition 

in any media market.” 

Clause 8.5.2 – MDA will ordinarily complete its review of the Consolidation Application 

within 30 days after the start of the Consolidation Review Period. In any case in which 

MDA determines that a Consolidation Application raises novel or complex issues, MDA 

will notify the Applicants that it intends to extend the Consolidation Review Period by 

up to 90 days to a maximum of 120 days from the start of the Consolidation Review 

Period. MDA will seek to provide this notification within 21 days after the start of the 

Consolidation Review Period. In extraordinary cases, MDA may extend the 

Consolidation Review Period by an additional 60 days and will seek to provide 

notification by the 110th day of the Consolidation Review Period. 

Clause 10.6.2.4(b) – MDA will generally issue a preliminary decision within 60 working 

days of receiving all necessary information. Where appropriate, MDA may, by written 

notice to the persons pursuant to the action before the expiry of the 60 working days 

period, extend the time by which MDA will issue its decision. In such cases, MDA will 

specify the number of days by which it is extending the examination period. 

StarHub notes the terms “days” and “working days” are used throughout the proposed 

Code. StarHub would seek MDA’s clarification as to whether the term “days” relates to 

calendar or business days. For consistency purpose, Starhub would propose that all 

references in the proposed Code should be standardised to refer to “business days”. 

Clause 8.6.2(c) – In such cases, MDA will consider whether the Post-Consolidation 

Entity would be likely to: 

(c) facilitate collusion between Regulated Persons or other persons in any media 

market by increasing market transparency; or 

It is unclear from Clause 8.6.2(c) how “increasing market transparency” could facilitate 

collusion. StarHub would therefore propose that Clause 8.6.2(c) be amended to refer 

to: 


“In such cases, MDA will consider whether the Post-Consolidation Entity would be 

likely to: (c) facilitate collusion between Regulated Persons or other persons in any 

media market by increasing market transparency; or 

Clause 8.6.2(d) – Create a conglomerate Consolidation which would be likely to give 

rise to portfolio power … 

We would note that the term “portfolio power” is undefined. Given the importance of 

transparency in the proposed Code, StarHub would suggest that either: 

The reference to term “portfolio power” be deleted; or 

If the reference to “portfolio power” is intended to reflect recent European 

Commission decisions in Consolidation Reviews, we would suggest that 

“portfolio power” be defined as: “the market power deriving from a portfolio of 

brands exceeds the sum of its parts”. 

Clause 8.7.3.2.5 - As a condition of its approval of the Consolidation Application, MDA 

may require the Applicants to agree to terminate or modify any existing agreement 

that, following the Consolidation, would be likely to unreasonably restrict competition. 

For example, MDA could require an Applicant to agree to terminate or modify existing 

agreements that: 

(a) impose early termination penalties on Subscribers who seek to switch to rival 

providers; 

(b) require Consumers to make all or a specified portion of their purchases of specific 

services from the Applicant or its Affiliate; or 

(c) require suppliers to make all or a specified portion of their sales to the Applicant. 

To ensure document consistency and ease of understanding, we would suggest that 

MDA standardises all references of “Subscribers” and “Consumers” to “end-users”. 

Clause 8.7.4 – MDA will generally consult the Applicants prior to rejecting, or imposing 

any condition in relation to the grant of approval to, a Consolidation Application. As 

part of the consultation process, MDA will generally describe the actions it proposes to 

take and the basis on which it proposes to take them, and will provide the Applicants 

with an opportunity to express their views and provide any additional relevant 

information so long as they provide their information within 30 days of receipt of such 

notice from MDA. 

As highlighted above, ambiguous terms should be avoided to reduce uncertainty to all 

Regulated Persons. As such, we strongly believe that the term “generally” should be 

removed from the above clause. 

Clause 9.3.1.3(b) – The Entity Controlling Resources must respond to all points made 

by the Requesting Person and must provide a full explanation as to the reasons why it 

does not believe it should be required to provide access to the requested Resource on 

reasonable and non-discriminatory prices, terms and conditions. 


StarHub agrees with MDA that the Entity Controlling Resources must respond to the 

requesting person’s requests. However, there will be instances where it is not possible 

for the Entity Controlling Resources to respond in the manner set out in Clause 

9.3.1(b). For example, there could be a genuine difference of view between the 

parties as to what constitutes “non-discriminatory” terms. In such circumstances the 

proposed language in Clause 9.3.1(b) would be inappropriate. We would therefore 

suggest that Clause 9.3.1.3(b) be amended to simply require the Entity Controlling 

Resources to respond to the requesting party: 

“The Entity Controlling Resources must respond to all points made by the 

Requesting Person and must provide a full explanation as to the reasons why it 

does not believe it should be required to provide access to the requested 

Resource on reasonable and non-discriminatory prices, terms and conditions.” 

Clause 9.3.1.6 - In addition to considering the criteria laid out in paragraph 9.3.1.5, 

MDA may deem that a Resource is essential in order to bring wider benefits to the 

public. This may occur, in situations involving, but not limited to, environmental 

concerns which preclude the duplication of Resources, such as poles or towers. 

Therefore, in such cases, MDA will issue a written statement as to the basis on which 

the public interest requires that the Entity Controlling Resources provides access to 

such Resources and MDA will publish, by notification in the Gazette, its decision in 

declaring the Resource to be an Essential Resource. 

As previously highlighted, it is necessary to provide a level of certainty when MDA 

determines and classifies a Regulated Person’s resource to be an “Essential 

Resource”. The resource owner must also have the necessary legal right to provide 

such access. StarHub would therefore propose that the following clause be reinstated 

in Clause 9.3.1.6: 

“The MDA will not require an Entity Controlling Resources to provide access to 

resources that do not satisfy the criteria specified in paragraph 9.3.1.5 of this 

Code.” 

Clause 9.3.2.2(a) - If the persons are unable to reach a mutually acceptable Access 

Agreement within 90 days after the date on which a request to negotiate was made, 

the Requesting Person may request MDA to initiate a Dispute Resolution pursuant to 

paragraph 10.5 of this Code. 

As it is currently drafted, Clause 9.3.2.2(a) suggests that any person can request for 

access to the Essential Resources. This appears to be out of line with the direction of 

the proposed Code, which is aimed at regulating the market behaviour of Regulated 

Persons. Given the importance of Essential Resources, we strongly believe that such 

access should be limited to Regulated Persons. We would therefore propose the 

following amendment: 

“If the Regulated Persons are unable to reach a mutually acceptable Access 

Agreement within 90 days after the date on which a request to negotiate was 

made, the Requesting Person may request MDA to initiate a Dispute 

Resolution pursuant to paragraph 10.5 of this Code.” 


Clause 10.4 - Persons to the following disputes may jointly request MDA to provide 

conciliation services (“Conciliation”) to assist in resolving the dispute: 

(a) failure to reach an agreement regarding the prices, terms and conditions upon 

which the Lead Broadcaster will provide access to the “feed” of an event designated 

an Event of National Significance pursuant to paragraph 2.4 of this Code; 

(b) failure to reach an agreement regarding the prices, terms and conditions upon 

which a Designated Archive Operator will provide access to archived material that 

must be made available pursuant to paragraph 2. 5 of this Code; 

(c) any disagreement regarding Free-to-Air Television Licensees’ and Subscription 

Television Licensees’ obligations pursuant to the “anti-siphoning” and “anti-hoarding” 

provisions specified in paragraphs 2.6.1 and 2.6.2 of this Code; or 

(d) failure to reach an agreement regarding the prices, terms and conditions upon 

which an Entity Controlling Resources will provide access to an Essential Resource, 

when required to do so pursuant to Part 9 of this Code. 

Clause 10.5 - While all persons are encouraged to resolve disputes through good-faith 

commercial negotiations, MDA will provide dispute resolution services at its discretion 

(“Dispute Resolution”) in connection with specific disputes described in paragraph 10.4 

of this Code. 

StarHub notes that the “Persons” who can request for Conciliation under Clauses 10.4 

and 10.5 may be construed as Regulated Persons, given that the provisions limit 

Conciliation and Dispute Resolution requests to matters set out in (a) to (d). Given this 

is the case, we submit that these Clauses should refer to “Regulated Persons”. This 

modification is consistent with the IDA’s Telecoms Code, which expressly provided 

that only licensees may request for Conciliation and Dispute Resolution. 

Clause 10.5.2 - MDA may impose administrative fees as it considers necessary to 

cover costs incurred in the course of any Dispute Resolution. 

StarHub would submit that the reference to administrative fees should be removed, 

given that Regulated Persons are already subject to a licence fee payment to MDA, 

and that this licence fee is intended to recover the cost of administering the licence 

and the performance of MDA’s regulatory functions (such as dispute resolution). 

We would note that there is no such requirement under IDA’s Telecoms Code. We 

would therefore submit that, to ensure consistency between the sectors, that this 

clause should be deleted from the proposed Code. 

10.6.2.8 - Binding Effect of Representations 

Clause 10.6.2.8 applies to representations made in the Enforcement Action and 

Dispute Resolution proceedings. We believe that it would be inappropriate to include 

this wording in Clause 10.6, which address Enforcement Actions. Instead, we would 

propose to shift Clause 10.6.2.8 into a separate Clause 10.7 and to re-number the 

current Clauses 10.7, 10.8 and 10.9 accordingly. StarHub notes that this proposal is 

consistent with IDA’s Telecoms Code. 


Clause 10.6.2.8(b) - MDA reserves the right to reject the relevant portion of any 

subsequent submission made by the person in the course of the relevant proceeding 

that: 

(i) in relation to an enforcement proceeding, makes any new allegation of 

contravention not previously disclosed in the Request for Enforcement, or raises any 

new ground to dispute the allegations of contravention not previously disclosed; 

(iii) contains information that could have been submitted in its Request for 

Enforcement or initial submission for dispute resolution; or 

(iv) takes any position that is inconsistent with its initial submission. 

The wording is unclear as to whether the ‘initial submission’ is intended to refer to ‘the 

initial submission of the Petition for Dispute Resolution or Response to the Petition for 

Dispute Resolution”. StarHub would therefore propose the following amendments: 

“MDA reserves the right to reject the relevant portion of any subsequent 

submission made by the person in the course of the relevant proceeding that: 

(i) in relation to an enforcement proceeding, makes any new allegation of 

contravention not previously disclosed in the Request for Enforcement, or 

raises any new ground to dispute the allegations of contravention not 

previously disclosed in the response; 

(iii) contains information that could have been submitted in its Request for 

Enforcement or initial submission for dispute resolution of the Petition for 

Dispute Resolution or Response to the Petition for Dispute Resolution. 

(iv) takes any position that is inconsistent with its initial submission of the 

Petition for Dispute Resolution or Response to the Petition for Dispute 

Resolution.” 

Clause 10.6.3 - In the event that MDA concludes that any Regulated Persons is 

contravening, has contravened or is likely to contravene any provision of this Code, 

MDA may take such enforcement measures as it considers appropriate pursuant to 

clause 26(2) of the MDA Act. Such enforcement measures include, but not limited to, 

the following enforcement actions: 

The proposed Code provides that MDA may take enforcement measures available to it 

where a Regulated Person has contravened any provision of the Code (including 

issuing a warning to the Regulated Person), or 'is likely to contravene' any provision of 

the Code. 

By way of comparison, the Hong Kong Broadcasting Ordinance allows the HKBA to 

issue Directions to ensure the Licensees' compliance with regulatory requirements. 

The Broadcasting Ordinance focuses on actual breaches, rather than “potential” 

breaches. Similarly, IDA’s Telecoms Code expressly states that IDA may only 

commence enforcement action measures against a licensee that “has contravened” 

the Code. 

The approach taken by the HKBA, and also by IDA, gives licensees certainty that it is 

only their actions (rather than their possible future actions) that will be subject to an 

enforcement action. 


We submit that the proposed Code should regulate the conduct of the Regulated 

Persons, and should not speculate as to the potential actions that Regulated Persons 

might take. To align the proposed Code with IDA’s Telecom’s Code and to remove 

these ambiguous terms, StarHub would propose to revise Clauses 10.6.3 and 10.6.3.1 

to: 

“Clause 10.6.3 - In the event that MDA concludes that any Regulated Persons 

is contravening, has contravened or is likely to contravene any provision of this 

Code, MDA may take such enforcement measures as it considers appropriate 

pursuant to clause 26(2) of the MDA Act. Such enforcement measures include, 

but not limited to, the following enforcement actions: 

Clause 10.6.3.1 - MDA may issue a warning to any Regulated Person. The 

warning will contain a statement of MDA’s basis for concluding that the 

Regulated Person is acting, has acted or will be acting in contravention of any 

provision of this Code, but will impose no further sanction.” 

Clause 10.6.3.4 - MDA may impose financial penalties of up to S$1 million per 

contravention or for any contravention of any provision of this Code. Financial 

penalties will be determined on the length of and seriousness of any abuse, and will be 

proportionate to the harm done. 

StarHub would note that the expression “per contravention or for any contravention” 

appears to be a typographical error. To remove this error, StarHub would propose: 

“MDA may impose financial penalties of up to S$1 million per contravention or 

for any contravention of any provision of this Code. Financial penalties will be 

determined on the length of and seriousness of any abuse, and will be 

proportionate to the harm done.” 

Clause 10.6.3.4.1 - In imposing financial penalties, MDA will consider any aggravating 

factor, including, but not limited to: 

(a) the severity of the contravention; 

(b) the duration of the contravention; 

(c) whether the contravention resulted in adverse consequences to third parties; 

(d) whether the Media Service Provider acted knowingly, recklessly, or in a grossly 

negligent manner; 

(e) whether the Media Service Provider has a previous history of contraventions; and 

(f) whether the Media Service Provider made any effort to conceal the contravention. 

Clause 10.6.3.4.2 - In imposing financial penalties, MDA will also consider any 

mitigating factor, including, but not limited to: 

(a) whether the contravention was minor; 

(b) whether the adverse consequences to third parties from the contravention were 

minor; 

(c) whether the Media Service Provider took prompt action to correct the 

contravention; 

(d) whether the contravention was accidental; and 

(e) whether the Media Service Provider voluntarily disclosed the contravention to MDA. 

StarHub notes that MDA will have regard to any 'aggravating' or 'mitigating' factors 

when setting the level of penalties to levy for any contravention of the proposed Code. 


In comparison, Section 28 of the Hong Kong Broadcasting Ordinance sets maximum 

amounts financial penalties for successive contraventions, and provides an additional 

procedure for taking Licensees to Court where the set limits are considered 

insufficient. In addition, Section 28 of the Hong Kong Broadcasting Ordinance states 

that the HKBA cannot impose a financial penalty unless that penalty is proportional 

and reasonable in all the circumstances of the case. 

We submit that, in considering the imposition and assessment of financial penalties for 

any breach of the proposed Code, it is important for the proposed Code to establish a 

set of comprehensive and definite criteria. If this is not done, the proposed Code will 

simply create confusion and disagreement. StarHub would therefore propose to 

amend these clauses to: 

“10.6.3.4.1 - In imposing financial penalties, MDA will consider any aggravating 


(a) the severity of the contravention; 

(b) the duration of the contravention; 

(c) whether the contravention resulted in adverse consequences to third parties; 

(d) whether the Media Service Provider acted knowingly, recklessly, or in a 

grossly negligent manner; 

(e) whether the Media Service Provider has a previous history of contraventions; 

and 

(f) whether the Media Service Provider made any effort to conceal the 

contravention. 

10.6.3.4.2 - In imposing financial penalties, MDA will also consider any mitigating 


(a) whether the contravention was minor; 

(b) whether the adverse consequences to third parties from the contravention 

were minor; 

(c) whether the Media Service Provider took prompt action to correct the 

contravention; 

(d) whether the contravention was accidental; and 

(e) whether the Media Service Provider voluntarily disclosed the contravention to 

MDA.” 

We would also seek MDA’s clarification as to what will be considered “minor” in this 

context. 

Clause 10.9 - In any case in which MDA makes any act, direction or decision pursuant 

to this Code, any person who is aggrieved by any act, direction or decision may: 

(a) ask MDA to reconsider its act, direction or decision; or 

(b) notwithstanding paragraph 10.9(a) above, appeal to the Minister within 14 days of 

the date on which the person is notified of the original act, direction or decision, or 

such longer period, as the Minister may allow. 

Unlike IDA’s Telecoms Code, the proposed Code does not have any procedures 

governing the review of MDA’s acts, directions and decisions. We would therefore 

seek MDA’s clarification as to the procedures that will be followed for such reviews. 


Clause 11.4.2(b) - Nevertheless, such a person shall remain liable for any 

contravention under the revoked Media Market Conduct Code in respect of such 

agreement, act or conduct, as if the revoked Media Market Conduct Code had not 

been revoked. Any such enforcement action is subject to a 2 years time limitation from 

the date of the occurrence of the action that constitutes the alleged contravention of 

this Code. 

Clause 11.4.2(c) - In this respect, any enforcement proceeding commenced before 

the Effective Date of this Code may be continued and completed under the provisions 

of the revoked Media Market Conduct Code, as if the revoked Media Market Conduct 

Code had not been revoked. However, any right of appeal in relation to that 

proceeding shall be exercised, heard and determined under paragraph 10.9 of this 

Code. 

We believe that these Clauses are ambiguous and are potentially subject to a variety 

of interpretations. StarHub would seek MDA’s clarification as to the applicability of the 

proposed Code and the revoked Media Market Conduct Code under these Clauses, in 

particular with regard to: 

(a) the commencement date of the 2-year limitation period; and 

(b) the appeal proceedings in relation to an enforcement action that has 

commenced prior to the Effective Date of the proposed Code. 

We would propose that the commencement date of the 2-year limitation period should 

relate to an alleged contravention of the revoked Media Code, instead of the proposed 

Code, as the enforcement procedure in question under Clause 11.4.2(b) is in respect 

of an agreement entered into, or act or conduct that occurred, before the Effective 

Date of this Code. 

We would also propose that any right of appeal exercised prior to the Effective Date 

(including the continuance of the hearing and the determination of the appeal) should 

be governed by the revoked Media Market Conduct Code, rather than the proposed 

Code, as the enforcement action to which the appeal proceedings are related would 

be governed under the revoked Media Market Conduct Code. The determination as to 

which Code is to apply should not be dependent on when the right of appeal is 

exercised, but rather which relevant enforcement proceedings the right of appeal 

relates to. As such and accordingly, if the enforcement proceedings were to start on 

or after the Effective Date, the enforcement and appeal procedures under the 

proposed Code would apply.

starhub cable vision ltd's response to mda second public ...

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