INFORMATION CIRCULAR TO THE PAY TV INDUSTRY IN RESPECT OF MDA’S DECISION ON SINGNET’S EXEMPTION APPLICATIONS FROM OBLIGATION UNDER PARAGRAPH 2.7 OF THE MEDIA MARKET CONDUCT CODE – BARCLAYS PREMIER LEAGUE SEASONS 2013/16

1.      On 24 July 2013, MDA granted SingNet Pte Ltd ("SingNet") an exemption (the "BPL Exemption Decision") under Paragraph 2.7 of the Media Market Conduct Code ("Code") from the requirement to cross-carry certain channel packages¹ containing the Barclays Premier League Seasons 2013/2016 ("BPL Content") and other non-BPL Content, such that SingNet would only cross-carry the channel package containing solely the BPL Content ("Standalone BPL")² on every Receiving Qualified Licensee's ("RQL's") Relevant Platform(s).

2.        Between 3 January 2014 and 25 February 2014, MDA issued the following decisions in relation to SingNet's further requests for exemptions in respect of the BPL Content ("MDA's Further Decisions"):

 

3.  This Industry Circular sets out a summary of MDA's considerations in relation to MDA's Further Decisions.

Principles guiding MDA's Further Decisions

Addition of the New Channels to the Gold Packs

4.      In reviewing SingNet's submissions, MDA considered whether an exemption for the addition of the New Channels to the Gold Packs will benefit the public and media industry. MDA also considered SingNet's submissions that the New Channels are included in the corresponding pack(s) that best provides related content, and that the considerations detailed in paragraphs 8 and 9 of the BPL Exemption Decision will continue to apply with respect to the addition of the New Channels to the Gold Packs. MDA therefore decided to grant an exemption.

Addition of subsequent new channels in future to the Gold Packs

5.        MDA noted SingNet's submission that, in the normal course of events, there will be additions of channels to its Gold Packs, when SingNet signs up new programming/content with content providers and the new programming/content would be added as channels to the relevant Gold Packs. MDA considers that exemptions may be granted to SingNet for the addition of subsequent new channels in future to the Gold Packs, but this is subject to the conditions and procedures described in paragraph 18 below.

Addition of subsequent new channels in future to the mio Stadium+ Pack

6.      For the addition of subsequent new channels in future to the mio Stadium+ Pack, SingNet submitted that it intends to offer these new channels only to subscribers of the mio Stadium+ Pack on the mio TV platform, but not to subscribers to the mio Stadium+ Pack on the SCV platform.

7.       MDA's view is that any new channels offered to subscribers to the mio Stadium+ Pack on SingNet's platform will be subject to the cross-carriage requirements under the Code and SingNet will be required to offer such channels to subscribers to the mio Stadium+ Packs on the SCV platform, on a non-discriminatory basis. Accordingly, MDA decided not to grant an exemption to SingNet in respect of its obligations to cross-carry any subsequent new channels added to the mio Stadium+ Pack.

Offer of the Specified Free Previews (i.e. the CNY Free Preview and Specified New Channels Free Previews)

8.       In considering SingNet's request for exemption to offer the Specified Free Previews, MDA noted that the onus of obtaining the relevant platform rights for purposes of complying with its obligations of cross-carriage is clearly on SingNet.³ In addition, the costs related to SingNet's compliance with its obligations under the Code are clearly to be borne by SingNet, and does not amount to a sufficient basis for the granting of an exemption.⁴

9.      However, MDA accepted SingNet's representations that such exemption would be in the interest of the public and the media industry and granted an exemption, having regard to factors which include:

         (a)   that both the CNY Free Preview and the Specified New Channels Free Previews do not include free previews of the BPL Content;

         (b)    that the Specified New Channels Free Previews would provide customers with an opportunity to review the content and then to make an informed decision as to whether to subscribe for that content. These Specified New Channels Free Previews are, however, unlikely to benefit subscribers accessing the mio Stadium+ Pack on SCV's platform as these subscribers are unlikely to take up any other content from SingNet apart from the BPL Content; and

          (c)     that the offer of the CNY Free Preview and the Specified Free Previews would be for a limited duration of time.

Offer of the Additional Free Previews

10.        MDA considered SingNet's request for exemption to offer the Additional Free Previews in two separate parts: (a) Additional Free Previews which include the BPL Content (or other Qualified Content); and (b) Additional Free Previews which do not include the BPL Content (and any non-Qualified Content).

11.       In respect of the offer of Additional Free Previews which do not include the BPL Content, MDA considers that such exemptions may be granted, subject to the conditions and procedures described in paragraph 21 below.

 

12.     In respect of the offer of Additional Free Previews which include the BPL Content, and in reviewing SingNet's submissions, MDA considerations included:

 

(a) that by allowing free previews of the BPL Content to be offered on SingNet's platform only, such free previews have the potential of adversely undermining the objectives and effectiveness of the cross-carriage measure, by allowing an environment where pay TV retailers may pivot back into pursuing an exclusive content-centric strategy as a means to compete for subscribers;

(b)　 that based on SingNet's further exemption requests, SingNet intends to offer free previews of the BPL Content, as part of the Festive Free Previews, Topical Free Previews, Service Recovery Free Previews and Marketing Free Previews, and these free previews are to be offered beyond:

(i)  SingNet's first, one-off, offer of free previews of BPL matches to all mio TV subscribers, between 6.30pm on 17 August 2013 and 3.30am on 18 August 2013; and

  (ii)  SingNet's second goodwill offer of free previews of all of SingNet's mio TV channels, including the BPL Content, to those mio TV subscribers who had been affected by the service difficulty incident on mio TV's platform on 9 October 2013, between 15 November 2013 and 14 December 2013;

(c) 　 that there is public interest for consumers on the SCV platform to be offered free previews of the BPL Content, since these viewers may decide to subscribe to SingNet's BPL Content, albeit through the SCV platform (i.e. the mio Stadium+ Pack on SCV's platform); and

(d)　 that SingNet is not limited to offer free previews of the BPL Content as a means of service recovery, and the form of service recovery is entirely within SingNet's discretion.

13.    Having assessed all the relevant circumstances, MDA decided that an exemption for SingNet to offer Additional Free Previews which include the BPL Content is not warranted.

Offer of Complimentary Channels

14.  In respect of SingNet's request to offer Complimentary Channels to all its mio TV subscribers (including the subscribers of the Standalone BPL which is required to be cross-carried under the Code on SCV's platform), MDA's prima facie view is that any Complimentary Channels that are offered by SingNet would be considered as being part of SingNet's Subscription Service offering. In particular, MDA notes that any such Complimentary Channels would only be available if the viewer was a mio TV subscriber. In other words, the pre-requisite to being able to access such Complimentary Channels was to first subscribe to SingNet's mio TV.

15. 　Consequently, in relation to the Standalone BPL, the Complimentary Channels can correspondingly be said to have been bundled together with the Standalone BPL, and unless exempted by MDA, any Complimentary Channels offered by SingNet would be deemed to be Qualified Content pursuant to Paragraph 2.3(d)(ii) of the Code and SingNet would be required to cross-carry such Complimentary Channels to subscribers of the Standalone BPL on SCV's platform.

Procedures to facilitate MDA's consideration of future applications for exemptions in relation to the BPL Content

Addition of subsequent new channels in future to the Gold Packs

16.     For the purposes of paragraph 11(c) of the BPL Exemption Decision⁵ and to facilitate MDA's consideration of any future applications for exemptions by SingNet for the addition of new channels to the Gold Packs, MDA requires SingNet to comply with certain processes and conditions in respect of new channels added to the Gold Packs ("Gold Packs Exemption Process").

17.    The Gold Packs Exemption Process does not apply to any new channels which have been acquired on an exclusive basis and/or would be Qualified Content under Paragraph 2.3(d)(i) of the Code.

 

18.     Under the Gold Packs Exemption Process:

 (a)   SingNet is required to submit a notification to MDA at least one (1) month before effecting any changes to the channel line-up of the Gold Pack(s) (or such shorter time as agreed to by MDA), and such notification must include the following information:

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(i) the specific new channel(s) which SingNet intends to add to the Gold Packs, and which specific Gold Pack(s) SingNet intends to add them to; and

 

(ii)     a detailed self-assessment showing that the addition of the new channel(s) to the Gold Packs will not trigger any change to the basis of the exemptions of the Gold Packs in the BPL Exemption Decision and in MDA's Further Decisions;

 

(b)     should MDA respond to SingNet with queries, or raise any objections to SingNet, within ten (10) working days of receipt of SingNet's submission of the notification mentioned in sub-paragraph 18(a) above, then SingNet must not proceed to add the new channel(s) to the relevant Gold Packs, until such time that MDA expressly gives its approval to do so. Otherwise, SingNet may proceed to add the new channel(s) to the relevant Gold Packs and such new channel(s) shall be exempted with effect from the date of the addition by SingNet to the relevant Gold Packs. In such instances, MDA will no longer publish any decisions as to such exemptions granted. 

19.      MDA would emphasise that its assessment of any proposal to add any new channel to the Gold Pack(s) will be made on a case-by-case basis. The fact that MDA has not raised any objection in respect of any new channel previously notified to MDA shall not be taken as precedence, or create any form of legitimate expectation, that MDA would approve any other new channel that may be notified to MDA subsequently.

 

20.   For the avoidance of doubt, the Gold Packs Exemption Process is in addition, and without prejudice, to the conditions set out in the BPL Exemption Decision.

Offer of Additional Free Previews (of non-BPL Content only)

21.   For the purposes of MDA's consideration of any future applications for exemptions by SingNet from the obligations under Paragraph 2.7 of the Code for the offer of Additional Free Previews (which do not include the BPL Content or any other forms of Qualified Content), MDA requires SingNet to comply with the following processes and conditions:

New Channel Launch Free Previews, Festive Free Previews, Topical Free Previews and/or Marketing Free Previews

(a)     SingNet must notify MDA at least one (1) month prior to the intended offer of such free previews (or such shorter time as may be agreed to by MDA), and provide the following information as part of such notification:

(i)　SingNet's detailed self-assessment showing that the addition of the offer of the free preview would not trigger any change to the basis of MDA's prior exemptions of free previews;

(ii)　any additional bases under the Code for exemptions of the proposed free preview; and  

(iii)　reasons as to why the period of the free preview is no more than commensurate with the purpose for which the free preview is being offered;

(b)    should MDA respond with any queries to SingNet, or raise any objections to SingNet, within ten (10) working days of receipt of SingNet's submission of the notification mentioned in sub-paragraph 21(a) above, SingNet must not proceed to offer the free preview, until such time that MDA expressly gives its approval to do so. Otherwise, SingNet may proceed to offer the free preview to all subscribers of the mio TV platform for the duration specified in SingNet's notification (excluding subscribers of the mio Stadium+ Pack on SCV's platform). In such instances, MDA will no longer publish any decisions as to such exemptions granted;

　　　　Service Recovery Free Previews

(c)   SingNet must notify MDA at least ten (10) working days prior to the offer of any such free previews (or such shorter time as may be agreed to by MDA), and provide the following information as part of such notification:

(i)  　the nature and circumstances of the relevant service disruption;

 (ii)   whether any subscriber to the mio Stadium+ Pack on the SCV platform was affected in any respect by the relevant service disruption;  

(iii)  SingNet's self-assessment as to whether the offer of the Service Recovery Free Previews would trigger any change to the basis of MDA's prior exemptions of free previews;

(iv) any additional bases under the Code for exemptions of the proposed Service Recovery Free Previews; and 

(v)   reasons as to why the period of the Service Recovery Free Previews is no more than commensurate with the purpose for which the free preview is being offered;

(d)   should MDA respond with any queries to SingNet, or raise any objections to SingNet, within five (5) working days of SingNet's submission of the notification mentioned in sub-paragraph 21(c) above, SingNet must not proceed to offer the free preview. Otherwise, SingNet may proceed to offer the free preview to all subscribers of the mio TV platform for the duration specified in SingNet's notification (excluding subscribers of the mio Stadium+ Pack on SCV's platform). In such instances, MDA will no longer publish any decisions as to such exemptions granted. 

22.  Similar to the Gold Packs Exemption Process, MDA's assessment of any free preview will be made on a case-by-case basis. The fact that MDA has not raised any objection in respect of any free preview previously notified to MDA shall not be taken as precedence, or create any form of legitimate expectation, that MDA would approve any other free preview that may be notified to MDA subsequently.

 

23.   For the avoidance of doubt, the procedures detailed in paragraph 21 above do not apply to any free previews which contain the BPL Content or any other form of Qualified Content under Paragraph 2.3(d)(i) of the Code (unless specifically exempted by MDA). The conditions set out in paragraph 21 above are in addition, and without prejudice, to the conditions set out in the BPL Exemption Decision.

Compliance with exemption requirements

24.     This Industry Circular is intended to provide guidance to the industry, and does not alter or otherwise affect SingNet's responsibility to comply fully with the BPL Exemption Decision and MDA's Further Decisions. Should SingNet fail to comply with any conditions in the BPL Exemption Decision and MDA's Further Decisions, MDA would not hesitate to take appropriate enforcement action against SingNet.

25.     Any queries on this Industry Circular may be addressed to:

The Media Development Authority of Singapore
Attn: Mr Gabriel Chong, 1 Assistant Director (Competition and Consumer Policy),
Policy Division
Email: Gabriel_chong@imda.gov.sg ​

¹ Refers to SingNet’s Gold Packs (for consumers), the Sports Pack and the Sports Pack Plus (for corporates) and the mio Stadium Flexi Bundle (for hospitals and hotels).

² Refers to the mio Stadium+ Pack (for consumers) and the mio Stadium Pack (for corporates, hospitals and hotels).

³ See Paragraphs 2.7.1(b)(i) and 2.7.1(d) of the Code.

⁴ See Paragraph 2.7.1(i) of the Code.

⁵ Paragraph 11(c) of the BPL Exemption Decision requires that SingNet seek MDA's consent in the event that it wishes to make any changes to the packages subject to the Decision (including the Gold Packs).