Information Circular in respect of MDA's Decision on Changes in Process for Assessment of Exemption Applications for New Channels Addition and Free Previews of Non-BPL Content

Background

1. On 24 July 2013, MDA granted SingNet Pte Ltd (“SingNet”) an exemption (“2013 Exemption Decision”) under Paragraph 2.7.1(a) of the Media Market Conduct Code (“Code”) from the requirement to cross-carry certain channel packages containing the Barclays Premier League Seasons 2013/2014 – 2015/2016 (“BPL Content”) and other non-BPL Content (“Other Content”) (referred to collectively as the “BPL Bundles”), such that SingNet would only cross-carry the channel package containing solely the BPL Content (“Standalone BPL”) on every Receiving Qualified Licensee’s (“RQL’s”) Relevant Platform(s).ⁱ

2. On 25 February 2014, MDA issued its further decision (the “Further Decision”) in relation to certain further exemption requests made by SingNet in respect of the BPL Bundles. As part of the Further Decision, MDA had set out a process to facilitate future assessment of exemption applications in respect of adding new channels to the BPL Bundles and the offering of free previews of non-BPL Content to subscribers of BPL Bundles on the Singtel TV platform (formerly known as the mio TV platform) only.ⁱⁱ

3. On 16 February 2015, MDA issued its decisions to: (i) maintain the 2013 Exemption Decision to exempt SingNet from cross-carrying the BPL Bundles; and (ii) exempt SingNet from cross-carrying certain revised channel packages containing the BPL Content and Other Content (referred to collectively as the “Revised BPL Bundles”), subject to certain conditions (the “2015 Exemption Decision”).ⁱⁱⁱ

4. MDA also clarified that MDA’s Further Decision shall also apply to (i) the addition of new channels into the Revised BPL Bundles and (ii) the offer of free previews which do not contain the BPL Content to subscribers of the Revised BPL Bundles on the Singtel TV platform only.^iv

5. On 11 February 2016, MDA issued its decision to SingNet that details changes to the processes to assess (i) exemption applications in respect of adding new channels to the BPL Bundles and Revised BPL Bundles, and (ii) the offering of free previews of non-BPL Content to subscribers of BPL Bundles and Revised BPL Bundles on the Singtel TV platform. This industry circular sets out the changes to the processes.

Process for Adding New Channels to BPL Bundles and Revised BPL Bundles

6. Under the existing process for the adding of new channels to the BPL Bundles and Revised BPL Bundles, SingNet is required to notify MDA of the specific new channel(s) which it intends to add to the BPL Bundles and/or Revised BPL Bundles at least one (1) month in advance of such changes to the channel line-up. In such notification, SingNet is required to include a detailed self-assessment showing that the addition of the new channel(s) would not trigger any change to the bases of the previous exemptions granted by MDA. Should MDA respond to SingNet with queries or objections, within ten (10) working days of receipt of SingNet’s notification, then SingNet is not to proceed to add the new channel(s) to the relevant bundle until MDA gives its express approval to do so.

7. The rationale for introducing the aforementioned process was to facilitate ease of administration going forward. Given that the process has been in place for some time, MDA has reviewed and considered that there is merit in further streamlining the process to ensure that it remains relevant and serves its objectives in an effective and efficient manner going forward.

8. In this regard, MDA will modify the existing process and conditions set out in the Further Decision (see paragraphs 17 to 20 of the industry circular dated 4 April 2014) as follows. Instead of notifying MDA of the specific new channel(s) which it intends to add to the BPL Bundles and/or Revised BPL Bundles at least one (1) month in advance, SingNet is now required to notify MDA at least five (5) working days before effecting any such changes to the channel line-up of the BPL Bundles and/or Revised BPL Bundles. However, the five (5) working day period shall not apply in cases where SingNet intends to add new sports channel(s) or channel(s) which contain sports content to a BPL Bundle or Revised BPL Bundle. In these cases, the existing process and conditions set out in the Further Decision would apply (see paragraphs 17 to 20 of the industry circular dated 4 April 2014).

9. Specifically, in respect of new channel(s) to be added to the BPL Bundles and/or Revised BPL Bundles, MDA hereby requires SingNet to comply with the following modified process and conditions going forward, which shall supersede the existing process and conditions set out in the Further Decision (see paragraphs 17 to 20 of the industry circular dated 4 April 2014):

1. SingNet is required to notify MDA of the specific new channel(s) which it intends to add to its BPL Bundles and/or Revised BPL Bundles, as well as which BPL Bundles and/or Revised BPL Bundles it intends to add them to. In this regard, SingNet shall notify MDA at least five (5) working days before effecting any such changes to the channel line-up of the BPL Bundles and/or Revised BPL Bundles.

2.  In respect of such notification to MDA, SingNet is also required to submit its own self-assessment showing that the addition of the new channel(s) will not trigger any change to the bases of MDA’s exemptions in the 2013 Exemption Decision and the 2015 Exemption Decision, as well as in any other subsequent exemption decisions of MDA in respect of applications for exemptions by SingNet.

3.  Should MDA not respond with any queries to SingNet, or raise any objections to SingNet, during the five (5) working day period mentioned in sub-paragraph 9(a) above, SingNet may thereafter proceed to add the new channel(s) to the relevant BPL Bundles and/or Revised BPL Bundles, and such new channel(s) shall be exempted with effect from the date of the addition by SingNet to the relevant BPL Bundles and/or Revised BPL Bundles unless and until SingNet is notified otherwise by MDA.

4. MDA expressly reserves the right at any time (including after the adding of new channel(s) to a BPL Bundle and/or Revised BPL Bundle) to raise queries or objections in respect of any new channel(s) added or to be added by SingNet, including but not limited to situations where MDA considers that, based on the relevant facts and circumstances, the addition of any of the new channel(s) to any of the BPL Bundles and/or Revised BPL Bundles may raise regulatory or policy concerns.

5. In the event that MDA raises any queries or objections in relation to the new channel(s) added or to be added, MDA will inform SingNet of its queries or objections in writing. In the case of a channel that has yet to be added to a BPL Bundle and/or Revised BPL Bundle, SingNet shall not proceed to add the new channel to the relevant BPL Bundle and/or Revised BPL Bundle, until such time that MDA expressly gives its approval to do so. In the case of a channel that has already been added to a BPL Bundle and/or Revised BPL Bundle, SingNet shall, if required to do so by MDA, remove the channel from the relevant BPL Bundle and/or Revised BPL Bundle within such time as may be stipulated by MDA. SingNet shall only reinstate the new channel if MDA expressly gives its approval to do so.

6. The new channel(s) which is(are) to be included in the BPL Bundles and/or Revised BPL Bundles must not have been acquired on an exclusive basis and/or would not be Qualified Content under Paragraph 2.3(d)(i) of the Code.

7.  MDA’s assessment of any new channel will be made on a case-by-case basis, and 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.

8. The five (5) working day period mentioned in sub-paragraph 9(a) above shall not apply to the addition of any new sports channel(s) and/or channel(s) which contain sports content to a BPL Bundle and/or Revised BPL Bundle (even if such content would not on its own constitute Qualified Content). In the event that SingNet wishes to add such new channel(s) to a BPL Bundle and/or Revised BPL Bundle, SingNet must notify MDA at least one (1) month prior to the addition of the new channel(s). In such a case, the existing process and conditions set out in the Further Decision would apply (see paragraphs 17 to 20 of the industry circular dated 4 April 2014).

9. The conditions set out in this paragraph are in addition, and without prejudice, to the conditions set out in MDA’s 2013 Exemption Decision and the conditions set out in MDA’s 2015 Exemption Decision.

10. For the avoidance of doubt, the above process is not applicable to the addition of any new channels to the mio Stadium+ Packs. As explained in the Further Decision, the addition of such new channels to the mio Stadium+ Packs would not be exempted from SingNet’s cross-carriage obligations.^v

Process for Offering Free Previews of Other Content (i.e. Non-BPL Content) to Subscribers on the Singtel TV Platform

11. The Further Decision also sets out a process for exemptions in relation to offering the following free previews of Other Content (that is, non-BPL Content) to subscribers on every RQL’s Relevant Platform(s):

1. New Channel Launch Previews;

2. Festive Free Previews;

3. Topical Free Previews;

4. Service Recovery Free Previews; and

5. Marketing Free Previews

(all as defined in the Further Decision^vi, referred to collectively as “Proposed Free Previews”).

12. Under the existing process for facilitating the exemption of Proposed Free Previews, SingNet is required to notify MDA, at least ten (10) working days prior to any Service Recovery Free Previews and at least one (1) month prior to any other Proposed Free Previews, prior to the intended offer of any Proposed Free Previews. In addition, SingNet is required to include its detailed self-assessment showing that the offer of the Proposed Free Preview would not trigger any change to the bases of previous exemptions granted by MDA. If MDA does not respond to SingNet with any queries or raise any objections to SingNet within five (5) working days in the case of Service Recovery Free Previews, or ten (10) working days in the case of other Proposed Free Previews, SingNet may proceed to offer the Proposed Free Preview to all subscribers of the Singtel TV platform for the duration specified in SingNet’s notification (excluding subscribers of the mio Stadium+ Pack on StarHub Cable Vision Ltd’s (“SCV’s”) platform).

13. Similarly, MDA has reviewed the process for the Proposed Free Previews and has considered that there is merit in seeking to further streamline the process for facilitating the assessment of Proposed Free Previews.

Proposed Free Previews of Other Content up to 30 Days in Duration

14. In relation to the offering of Proposed Free Previews of Other Content which are 30 days or less, MDA has decided that, going forward, the following process and conditions shall supersede the existing process and conditions set out in the Further Decision (see paragraphs 21 to 23 of the industry circular dated 4 April 2014):

1. For the avoidance of doubt, this process does not apply to any one or more Proposed Free Previews which are offered on a consecutive basis such that their total duration spans more than 30 consecutive days. In the case of any such Proposed Free Previews, they shall be subject to the existing process as referred to and supplemented by paragraph 15 below. For example, in the event that SingNet wishes to offer a Proposed Free Preview for 15 days followed immediately by another Proposed Free Preview for a further 20 days, the duration of these Proposed Free Previews shall be counted as 35 days and both of the Proposed Free Previews shall be subject to the process referred to in paragraph 15 below.

2. For any Proposed Free Preview of up to 30 days’ duration, SingNet is required to notify MDA at least five (5) working days prior to the intended offer of the Proposed Free Preview.

3. Before submitting such notification to MDA, SingNet shall conduct its own self-assessment to determine that the Proposed Free Preview will not trigger any change to the bases of MDA’s exemptions of free previews as set out in MDA’s letter of 24 January 2014 and MDA’s letter of 25 February 2014, as well as in any other exemption decisions of MDA in respect of applications for exemptions by SingNet.

4. In the case of New Channel Launch Free Previews, Festive Free Previews, Topical Free Previews and/or Marketing Free Previews, SingNet is required in its notification to MDA to submit its self-assessment showing that the offer of the free preview would not trigger any change to the bases of MDA’s exemptions of free previews as set out in MDA’s letter of 24 January 2014 and MDA’s letter of 25 February 2014, as well as in any other exemption decisions of MDA in respect of applications for exemptions by SingNet.

5. In the case of Service Recovery Free Previews, SingNet is required in its notification to MDA to (i) specify the nature and circumstances of the relevant service disruption; (ii) confirm that no subscriber to the mio Stadium+ Pack on the SCV platform was affected in any respect by the relevant service disruption; and (iii) submit its self-assessment as to whether the offer of the Service Recovery Free Preview would trigger any change to the bases of MDA’s exemptions of free previews as set out in MDA’s letter of 24 January 2014 and MDA’s letter of 25 February 2014, as well as in any other exemption decisions of MDA in respect of applications for exemptions by SingNet.

6. Should MDA not respond with any queries to SingNet, or raise any objections to SingNet, during the five (5) working day period mentioned in sub-paragraph 14(b) above, SingNet may thereafter proceed to offer the relevant Proposed Free Preview.

7. MDA expressly reserves the right at any time (including after SingNet has commenced offering a Proposed Free Preview) to raise queries or objections in respect of any Proposed Free Previews being offered or to be offered by SingNet, including but not limited to situations where MDA considers that, based on the relevant facts and circumstances, the offer of any Proposed Free Preview may raise regulatory or policy concerns.

8. In the event that MDA raises any queries or objections in relation to a Proposed Free Preview which is being offered or to be offered, MDA will inform SingNet of its queries or objections in writing. In the case of a Proposed Free Preview that SingNet has yet to commence offering, SingNet shall not commence offering the Proposed Free Preview, until such time that MDA expressly gives its approval to do so. In the case of a Proposed Free Preview that SingNet has already commenced offering, SingNet shall, if required to do so by MDA, cease offering the Proposed Free Preview within such time as may be stipulated by MDA. SingNet shall only resume the Proposed Free Preview if MDA expressly gives its approval to do so.

9. MDA’s assessment of any Proposed Free Preview will be made on a case-by-case basis, and the fact that MDA has not raised any objection in respect of any Proposed 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 Proposed Free Preview that may be notified to MDA subsequently.

10. Without limitation, MDA is likely to find that a Proposed Free Preview, which includes coverage of the whole or a substantial portion of a major sporting event such as the FIFA World Cup or the UEFA European Championship, potentially raises regulatory or policy concerns (even if such content would not on its own constitute Qualified Content). In the event that SingNet wishes to offer a Proposed Free Preview that includes the whole or a substantial portion of the coverage for a major sporting event, the Proposed Free Preview must be available to all subscribers of SingNet on the Singtel TV platform and not limited to any specific class or subset of subscribers. SingNet must notify MDA at least one (1) month prior to the intended offer of the Proposed Free Preview. In such a case, the existing process and conditions set out in paragraphs 21 to 23 of the industry circular dated 4 April 2014, shall continue to apply.

11. The Proposed Free Previews shall not contain BPL Content, or any other form of Qualified Content under Paragraph 2.3(d)(i) of the Code (unless specifically exempted by MDA).

12. The conditions set out in this paragraph 14 are in addition, and without prejudice, to the conditions set out in MDA’s 2013 Exemption Decision and the conditions set out in MDA’s 2015 Exemption Decision.

Free Previews of Other Content More than 30 Days in Duration

15. In relation to Proposed Free Previews which are more than 30 days in duration, the existing process set out in the Further Decision, as described at paragraphs 21 to 23 of the industry circular dated 4 April 2014, shall continue to apply, subject to the following additional condition (which shall apply to both Service Recovery Free Previews as well as other types of Proposed Free Previews):

1. In its notification to MDA of a Proposed Free Preview, SingNet shall, in its notification to MDA, additionally highlight whether the free preview channel(s) is(are) available on the RQL’s platform.

16. Save as expressly indicated herein, the conditions set out above are in addition, and without prejudice to, the conditions in the 2013 Exemption Decision and the 2015 Exemption Decision.

Final Matters

17. The revised processes for the adding of new channels and offering of free previews as set out in this industry circular shall take effect as of 11 February 2016.

18. MDA also iterates that the changes set out in this industry circular are procedural in nature, and MDA’s considerations for the granting of exemptions in relation to the adding of new channels and the offering of free previews remain unchanged, as set out in the 2013 Exemption Decision, the Further Decision and/or the 2015 Exemption Decision.

19. For the avoidance of doubt, nothing in this industry circular shall preclude MDA from withdrawing or varying any of the exemptions granted by MDA, if it has reasonable grounds for:

1. believing that there has been a material change of circumstances, or that the bases on which MDA had granted the exemptions have changed; or

2. suspecting that the information on which the exemptions or consent is based was incomplete, false or misleading in a material particular.

20. Any queries on this industry circular may be addressed to:

The Media Development Authority of Singapore

Attn: Ms Daphne Wong, Deputy Director (Competition Policy)

Email: daphne_wong@imda.gov.sg