AF7430 Chap.9 The Television Industry and Its Licences
The Television Industry and Its Licences
An argument about reach, not about content
Television is treated differently from film because of what it is claimed to do rather than what it shows. You can choose whether to go to a cinema or to subscribe to a streaming service; the claim the regulatory scheme rests on is that television has infiltrated every household so completely that the same choice is not really available. Four traditional rationales follow.
The public owns the airwaves, so the public may demand they be used in the public interest and the government decides what that interest is. Usable frequencies are scarce, so somebody must allocate them. Broadcast messages are pervasive because airwaves have no physical boundaries. And the audience is comparatively captive, less likely to select and scrutinise what it receives.
Technology has undercut at least the second: an overseas court held in 1994 that scarcity was not a reason that could be applied to cable, and a 1998 local legislative brief recorded that free television was not limited to the constrained spectrum and that a technology-neutral regime would set no ceiling on how many domestic free licences could be issued.
Two tests sort every service
Does the service primarily target Hong Kong, and is it intended or available for reception by more than five thousand specified premises.
A free service meeting both is a domestic free television programme service; the same service received on payment of a subscription is a domestic pay service. Both are recommended on by the regulator and granted by the Chief Executive in Council. A service that does not primarily target Hong Kong is non-domestic, and for that category it does not matter whether it is free or paid or whether the public here can receive it.
A service reaching not more than five thousand specified premises, or hotel rooms, is other licensable. Those last two categories are granted by the regulator directly.
The distribution of holders is the argument in miniature: three domestic free licences, one domestic pay, nine non-domestic and twenty-one other licensable.
What the heaviest category has to do
A domestic free licensee must entertain, inform and educate with programming that is balanced and comprehensive and that answers the varied needs and hopes of the community it serves.
It must broadcast one service in Chinese and one in English. Advertising is capped at ten minutes in a clock hour between five and eleven in the evening, and at eighteen per cent of total service time outside that window.
Minimum weekly hours of positive programming are required across five categories, being news, current affairs, children, young persons and a residual heading that gathers documentary, programming for older viewers, arts and culture, medicine and health, the environment, science, sport, ethnic minorities and civic education.
Subtitling is required for news, current affairs, weather and emergency announcements and for everything between seven and eleven in the evening on both services, sign language for part of the news, and announcements in the public interest.
Ownership limits, and the regulator
A domestic free licensee must be incorporated locally and may not be a subsidiary; unless approval is given, a majority of directors and principal officers and anyone able to exercise more than two per cent of the voting power must have been ordinary residents for at least seven continuous years.
Cross-media rules bar other television licensees, sound broadcasting licensees, advertising agencies and newspaper proprietors, subject to a public-interest waiver. The Communications Authority is a statutory body corporate stated not to be a servant or agent of the government, presently composed of twelve members of whom eleven were appointed by the Chief Executive and one is a civil servant.
It advises on policy, recommends on the two domestic categories, grants the other two, writes the codes of practice, handles complaints and imposes sanctions, and administers the spectrum. No programme is previewed by government; each station previews its own output internally, which is why almost every reported dispute concerns whether a decision was properly made rather than whether a programme was acceptable.
What this chapter covers
- 01
Four rationales for strict control, and what technology did to them
- 02
The two tests that sort a service into one of four categories
- 03
Who grants which licence, and why that differs
- 04
Advertising caps and the five positive programme categories
- 05
Subtitling, sign language and public interest announcements
- 06
Ownership restrictions and the ordinary residence definition
- 07
Cross-media rules, and the public interest waiver beside them
- 08
The regulator's five groups of function, and its composition
- 09
Five reviewable decisions, read as administrative law
Four services, two tests, and who signs the licence
- 2State the two tests and the order in which you apply them.
- 3Classify the two domestic services and name the granting authority.
- 3Classify the satellite broadcaster and the hotel, and name the granting authority.
Key terms
- Domestic Free Service
- A television programme service free to the public, available to more than five thousand specified premises, and primarily targeting Hong Kong. It carries the heaviest obligations.
- Non-domestic Service
- A television programme service that does not primarily target Hong Kong. Whether it is free or paid, and whether the public here can receive it, is irrelevant.
- Other Licensable Service
- A television programme service available to not more than five thousand specified premises, or in hotel rooms, and the lightest of the four categories.
- Positive Programme Requirement
- A licence condition setting minimum weekly hours under five headings, among them news, current affairs, children and young people.
- Ordinary Resident
- Somebody present in Hong Kong for 180 days or more in each year, across 300 days over two consecutive years, used in the ownership restrictions.
- Cross-media Ownership
- The rules preventing other television or sound broadcasting licensees, advertising agencies and newspaper proprietors from holding a domestic free licence.
- Locking Device
- A technical condition required of the lighter licence categories so that adult viewers control who can watch, in exchange for more content flexibility.
- Indirect Advertising
- Promotional material presented inside programming, which the codes of practice require to remain clearly identifiable and distinct from the programme.
- Legitimate Expectation
- The administrative law ground on which an applicant may argue that a decision-maker should have followed its own published policy.
- Functus Officio
- The contention that a body which has exercised a statutory power has performed its function and cannot revisit its decision.
The Television Industry and Its Licences FAQ
What decides which television licence a service needs?
Two tests, applied in order. First, does the service primarily target Hong Kong; a service that does not is non-domestic, and for that category it makes no difference whether it is free or paid or whether the public here can receive it. Second, is it intended or available for reception by more than five thousand specified premises; a service below that threshold, or one in hotel rooms, falls into the other licensable category.
The remaining services are domestic, free or pay according to whether a subscription is charged.
Who grants a television licence?
It depends on the category. For domestic free and domestic pay services the Communications Authority considers applications and makes recommendations to the Chief Executive in Council, who grants the licence. For non-domestic and other licensable services the Authority grants the licence itself.
That split matters in practice, because the reported challenge by an unsuccessful free-television applicant was brought against the Chief Executive in Council rather than against the regulator that had recommended in its favour.
Can a broadcasting regulator's decision be challenged?
Yes, but on how the power was exercised rather than on whether the programme was acceptable. Reviewable questions include whether the body had the power, whether it followed its own published policy where an applicant had a legitimate expectation, whether the procedure gave an adequate opportunity to be heard, whether reasons were given, and whether the finding unjustifiably restrained speech or discriminated.
Whether a programme was in fact fair or accurate is treated as primarily a matter for the regulator, and one reported judgment says so expressly.
Assessment move
Take five services you actually use or can name and sort each one through the two tests, writing down the category and the granting authority before checking. Then look at the distribution of licence holders across the four categories and write two sentences on what that distribution suggests about whether the scheme's original rationales still hold.
That second exercise is the shape an essay question on this chapter will take.
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