Public antenna case ‘dents government authority’: TSI

The government’s authority is being ‘degraded’ by the Telecommunication Regulations Bureau’s failure to stop illegal activities by public antenna companies, said the Court of Second Instance

The Telecommunication Regulations Bureau (DSRT) has the duty to prevent public antenna companies from illegally relaying copyright-protected channels but so far has seemingly done nothing, the Court of Second Instance (TSI) said.
In a sentence dated July 21 but only released this week the three judges rejected an injunction filed by Macau Cable TV against public antenna companies.
The court acknowledged that the “persistence of the illegal activity” of these firms prevents “healthy and fair competition” in the market, which means Macau Table TV “will obviously carry on accumulating losses”.
But any injunction would have to be aimed not at public antenna companies but at the Administration, TSI stressed, which “has the duty of fulfilling its duties as part of the concession contract, ensuring the concessionaire’s exclusive rights”.
João Gil de Oliveira, Ho Wai Neng and José Cândido de Pinho were unusually critical of DSRT, which they claim to be “undermining the concession contract by failing to fulfil the duties it implies”.
So far “there is no sign DSRT has unleashed these mechanisms, nor invoked the relevant rules or even, at least, launched the relevant administrative proceedings,” the court accused.
Authorities “should intervene in order to prevent the continuation of these illegal activities,” the judges wrote.
The TSI decision ultimately contradicts the position of DSRT director Lawrence Tou Veng Keong, who last week said the bureau would not get involved in the legal dispute between Macau Cable TV and the public antenna companies.

The Administration must ‘put an end to this situation, it’s bizarre and degrading to the government’s own authority’

Court of Second Instance

“It’s the companies that should deal with this issue, taking into consideration their rights and responsibilities,” Tou said.
“The government has been extremely negligent and showed a very passive attitude in this issue,” legal expert Carlos Duque Simões told Macau Daily Times.
The lawyer, who formerly represented Macau Cable TV in this conflict, says the TSI decision is “extremely positive”. “It explains in detail the reasoning behind the verdict and clearly rejects other existing arguments,” he stressed.
Duque Simões believes the decision can help solve the problem. “The concessionaire can either use this verdict to pressure the government into action or even file a legal suit against the government,” he said.
Asked about whether it would sue the Administration, Macau Cable TV declined to make any comment through its legal representatives.

‘Degrading situation’

DSRT has tried to mediate the long running conflict claiming a total ban of public antenna companies would harm the rights of the majority of the Macau population.
In its injunction Macau Cable TV claimed it had a market share of only 20 percent – despite being the only legal concessionaire of cable television services. The company does not have the exclusive “because authorities have not enforced the law,” Duque Simões said.
In most local buildings television broadcasts comes from public antenna companies, which began operating in the 1970’s, long before Macau Cable TV was established.
The bureau’s goal is “to ensure everyone operates on a sound legal basis and that the rights of the population are respected,” Lawrence Tou said last week.
But TSI shot down the argument over “the good services rendered by the public antenna companies to the population for about 40 years because that criterion alone does not grant any rights”. “Good deeds do not justify unlawful actions,” the decision stresses.

‘The concessionaire can either use this verdict to pressure the government into action or even file a legal suit against the government’

Carlos Duque Simões

“And it’s not because so many years have passed in this status quo that it should become possible to put up with a waiting period of a few months, perhaps years,” the court says.
DSRT should act, “despite the sensitivity of the situation and the satisfaction of most of the population in having access to television and programming from all around the world at derisory prices,” the judges emphasised.
The Administration must “put an end to this situation, it’s bizarre and degrading to the government’s own authority,” the court said.
Authorities “have lost a lot of credibility,” Carlos Duque Simões agreed. “There is no justification for the sloppiness with which this situation was handled.”
Access to cable television broadcast “does not have as much social relevance as it is sometimes attributed,” he stressed. “We’re not talking about water supply or bread.”
The lawyer says any arguments over “an eventual public expression of discontent” over the ban of public antenna companies “is merely an excuse for inertia”.

Sunk losses

Macau Cable TV claimed to have accumulated losses of MOP 194.4 million from 1999 until the end of 2009, a claim generally accepted by TSI.
“If the situation were to remain as it currently stands,” the judges wrote, the company “would be hindered from conducting its cable television broadcast business in healthy and fair competition with the remaining operators”.
“Thus it [Macau Cable TV] will obviously continue accumulating losses which, given its amount, seem of extreme gravity and of difficult calculation,” the verdict says. The company’s “bankruptcy can come at any moment if it’s not prevented in time”.
Even if a current legal suit against public antenna companies were to favour the exclusive concessionaire the accumulated losses would still “likely be irrecoverable,” TSI said.
Macau Cable TV’s exclusive contract will expire in 2014 “with no end in sight to a situation frankly ruinous and harmful for the concessionaire’s investment and expectations,” the court warned.
“It wouldn’t be because of the non-observation of these criteria [irrecoverable losses] that this injunction, which would be aimed at stopping the defendants [public antenna companies] from broadcasting and retransmitting television signals, would be rejected,” the court said.
But Macau Cable TV “cannot, under penalty of subversion of government authority, replace it in suppressing or restricting the activities of people or companies,” the judges explained, even though authorities have failed to do their job.
The company claimed the activity of public antenna companies is carried out “with the knowledge and consent of the MSAR Government” – a claim accepted by both TSI and the Court of First Instance.
In fact, Macau Cable TV says among the buildings serviced by public antenna companies are some Administration institutions, namely the Social Welfare Bureau’s day-care centre in Ilha Verde, Winter shelter and Family Counselling Centre.
TSI also complained about the “the urban degradation” the city has reached due to the proliferation of illegal antenna connections in most buildings.

CCAC criticism

A preliminary report on a possible solution for the conflict is set to be presented to the Executive Council after receiving the green-light from Chief Executive Fernando Chui Sai On, Lawrence Tou said last week.
The report was prepared by a working group created last November after the Commission Against Corruption’s (CCAC) criticised DSRT for its inability and lack of vision to solve the public antenna issue.
The commission suggested the setting up of an expert group to solve the conflict between Cable TV and the public antenna companies within a set deadline: six months to one year.
The CCAC probe also proposed a revision of the legislation so that public antenna service providers should be formally placed under the government’s supervision and be required to obtain a special administrative licence through a revision of the legislation.
“It’s possible to integrate public antenna companies according to what the law allows them to provide, which is free terrestrial television. They have far exceeded their mission,” Carlos Duque Simões said.
But Lawrence Tou said the document sent to Chui Sai On is not a legal proposal.
CCAC also suggested the promulgation of an administrative order that punishes any public antenna company, which stops transmitting the signals before the licensing period ends.