Clause 15

The Minister may issue a written order (called in this section a separation order) to a regulated person (called in this section the relevant regulated person), if —

either of the following applies:

the relevant regulated person owns or controls any media resource used in connection with the provision of any media service pursuant to a broadcasting licence or newspaper permit (called in this section the relevant media service) in Singapore that is so costly or difficult to replicate that a requirement to do so would create a significant barrier to rapid and successful entry into the market for relevant media services in Singapore by an efficient competitor of the relevant regulated person;

the relevant regulated person has the ability to exercise significant market power in any market for relevant media services in Singapore, and both of the following apply:

the relevant media service provided by the relevant regulated person in that market is required by one or more persons for the provision of relevant media services in Singapore on a competitive basis;

it is so costly or difficult to provide the relevant media services that a requirement to do so would create a significant barrier to the provision of relevant media services in Singapore on a competitive basis by an efficient competitor of the relevant regulated person;

the Minister is satisfied that the actions that the Authority has taken in the exercise of its powers under this Act have failed, and that any other actions that the Authority may take in the exercise of those powers are likely to fail, to enable an efficient competitor of the relevant regulated person to achieve —

where paragraph (a)(i) applies, rapid and successful entry into the market for relevant media services in Singapore; or

where paragraph (a)(ii) applies, the provision of relevant media services in Singapore on a competitive basis; and

the Minister is satisfied that it is in the public interest to issue the separation order.(2) In deciding whether it is in the public interest to issue the separation order, the Minister must have regard to whether the issue of the separation order is necessary or desirable for one or more of the following purposes:

to promote and maintain fair and efficient market conduct and effective competition between persons engaged in commercial activities connected with media resources and relevant media services in Singapore;

to promote the efficiency and international competitiveness of the media industry in Singapore;

to eliminate or reduce barriers to competition arising from the ownership or control of any media resources, or the possession of significant market power, by the relevant regulated person;

to promote transparency, non-discrimination and equivalence of supply in relation to the provision of relevant media services in Singapore.(3) The separation order may —

direct the relevant regulated person to transfer to a separate entity (that need not be an independent entity) or an independent entity either or both of the following:

the whole or any part of any business of the relevant regulated person for the provision of relevant media services;

the whole or any part of any property of the relevant regulated person that is used by it to provide any relevant media services, and any rights, obligations and liabilities relating to that property;

for the purposes of paragraph (a), direct the relevant regulated person —

to establish a separate entity; and

to ensure that the separate entity (or the proprietor or chief editor of the newspaper to be published by the separate entity, as the case may be) applies for a broadcasting licence or newspaper permit; and

contain any other directions that the Minister considers appropriate, including (but not limited to) directions relating to all or any of the following matters:

the types of transactions, dealings, arrangements and relationships that the relevant regulated person may engage in, or is prohibited from engaging in, with the separate entity or independent entity;

the measures to be implemented to ensure that the relevant regulated person will not obtain effective control over the independent entity;

any future or contingent right or liability of the relevant regulated person;

the conditions of the transfer directed under paragraph (a), including the payment of consideration by the transferee to the relevant regulated person;

any incidental, consequential or supplementary matters which, in the Minister’s opinion, are necessary to ensure that the transfer directed under paragraph (a) is effective.(4) In determining the directions to be included in the separation order, the Minister must have regard to whether the directions are proportionate, taking into account —

the contestability of the relevant market for media services in Singapore; and

the effectiveness of the directions in eliminating or minimising any incentive or opportunity for the relevant regulated person to act in a manner that prevents, restricts or distorts competition in the relevant market for media services in Singapore.(5) A broadcasting licence or newspaper permit granted to a separate entity (or to the proprietor or chief editor of the newspaper to be published by the separate entity, as the case may be) established by a relevant regulated person may include (without affecting the power to impose conditions conferred by section 8 of the Broadcasting Act 1994 or section 21 of the Newspaper and Printing Presses Act 1974, as the case may be) conditions requiring the separate entity —

to operate on a stand-alone basis;

to deal at arm’s length with the relevant regulated person or any of its associates;

to provide to other persons any relevant media service in Singapore on the same terms and conditions (including in relation to price, service levels and time frames), and by means of the same systems and processes (including operational support processes), as it provides to the relevant regulated person or any of its associates; and

to do, or to refrain from doing, anything that is specified in the licence or permit (as the case may be) or that is of a description specified in the licence or permit.(6) The separation order takes effect, despite —

the provisions of any other written law or any rule of law; and

the provisions of the memorandum or articles of association, trust deed, partnership agreement, limited liability partnership agreement, or other constitution or equivalent instrument, of the relevant regulated person.(7) Despite any other written law or any rule of law, where the separation order contains a direction under subsection (3)(a), on the date appointed for the transfer of any business or property of the relevant regulated person to a transferee —

that business or property is transferred to, and vests in, the transferee without any other or further assurance, act or deed, and the separation order has effect according to its tenor and is binding on any person affected by the separation order;

every deed, bond, agreement or other arrangement subsisting immediately before that date which relates to that business or property, and to which the relevant regulated person is a party, continues in full force and effect, and is enforceable by or against the transferee, from that date, as if the transferee had been named in it or had been a party to it instead of the relevant regulated person; and

any proceedings or cause of action, by or against the relevant regulated person, pending or existing immediately before that date and relating to that business or property, if continued, is enforceable by or against, the transferee from that date.(8) Subject to subsection (11), the Minister may award compensation to the relevant regulated person for any damage caused to it by reason of its compliance with the separation order.(9) For the purposes of subsection (8), the Minister must, within 6 months after the making of the separation order, establish by regulations made under this section a scheme for determining the amount of any compensation payable to the relevant regulated person.(10) A scheme established under subsection (9) may provide for —

the manner in which any compensation or consideration is to be assessed, including methods of calculation, valuation dates and matters to be taken into account or disregarded when making valuations;

the assessment to be made by an independent valuer appointed by the Minister; and

the remuneration and expenses of the independent valuer.(11) No compensation is to be awarded under subsection (8) if, when issuing the separation order, the Minister is satisfied that the relevant regulated person had engaged in conduct that prevents, restricts or distorts competition in any market for media services in Singapore, through —

its control of the media resource mentioned in subsection (1)(a)(i); or

the exercise of its market power mentioned in subsection (1)(a)(ii).(12) Any compensation awarded by the Minister under subsection (8) is to be charged on and paid out of the Consolidated Fund.(13) Before issuing the separation order, the Minister must, unless the Minister decides that it is not practicable or desirable to do so, cause to be given to the relevant regulated person written notice of the Minister’s intention to issue the separation order, specifying the date by which written representations may be made to the Minister with regard to the proposed separation order.(14) Upon receipt of any written representation, the Minister must consider it for the purpose of determining whether to issue the separation order.(15) The Minister may at any time vary, suspend or revoke the whole or any part of the separation order.(16) The relevant regulated person and any person affected by the separation order must comply with the separation order.(17) Any person who contravenes subsection (16) shall be guilty of an offence and shall be liable on conviction —

in the case of an individual, to a fine not exceeding $125,000 or to imprisonment for a term not exceeding 3 years or to both and, in the case of a continuing offence, to a further fine not exceeding $12,500 for every day or part of a day during which the offence continues after conviction;

in the case of an entity which is a regulated person, to a fine not exceeding the higher of the following amounts:

10% of the annual turnover of that part of its business in respect of which it is granted the licence or permit (as the case may be), as ascertained from its latest audited accounts; or

$1 million,and, in the case of a continuing offence, to a further fine not exceeding $100,000 for every day or part of a day during which the offence continues after conviction; or

in any other case, to a fine not exceeding $1 million and, in the case of a continuing offence, to a further fine not exceeding $100,000 for every day or part of a day during which the offence continues after conviction.(18) A reference in this section to the issuing of a separation order includes a varying of that order.(19) The Minister may make regulations to establish a scheme for the determining of compensation to a relevant regulated person and for any matter necessary or expedient for the purposes of this section. (20) In this section —“business” includes any business affairs, property, right, obligation or liability;“consideration”, in relation to a transfer of any business or property of a regulated person, means the payment of monetary or other consideration by the transferee or any person on the transferee’s behalf to the regulated person for the transfer of the whole or any part of the business or property of the regulated person;“independent entity” means an entity that —

whether alone or together with its associates, does not have relevant control over the relevant regulated person or any relevant broadcasting licensee, newspaper company or relevant telecommunication licensee; and

is not under the relevant control of —

the relevant regulated person, whether alone or with its associates;

any relevant broadcasting licensee, whether alone or with its associates;

any newspaper company, whether alone or with its associates;

any relevant telecommunication licensee, whether alone or with its associates; or

any other entity which, whether alone or together with its associates, has relevant control over any relevant broadcasting licensee, newspaper company or relevant telecommunication licensee;“property” means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and includes —

any property, right or power of any description; and

in relation to a regulated person, the regulated person’s media resources;“relevant broadcasting licensee” means the holder of a broadcasting licence granted under section 8 of the Broadcasting Act 1994;“relevant control”, in relation to a regulated person or an independent entity, means —

the ability to exercise effective control over the regulated person or independent entity, as the case may be; or

such control as may be exercised over the regulated person or independent entity (as the case may be) by a 30% controller of that regulated person or independent entity;“relevant telecommunication licensee” means a person who is granted a licence under section 5 of the Telecommunications Act 1999 to —

run any telecommunication system for the purpose of offering to other persons all or any of the following:

telecommunication switching capacity;

telecommunication switching services;

telecommunication transmission capacity;

telecommunication transmission services;

provide telecommunication services to third parties using any telecommunication system leased from another person described in paragraph (a) (including telecommunication network elements such as transmission capacity, switching services, ducts and fibre); or

resell the telecommunication services of the person described in paragraph (a);“separate entity”, in relation to a regulated person, means an entity which is a separate legal entity from the regulated person, and includes any such entity the equity interests of which are wholly owned by the regulated person;“significant market power” means the ability to unilaterally restrict output, raise prices, reduce quality or otherwise act, to a significant extent, independently of competitive market forces.”.