Regulation 1

1 Goals of this Code This Code is intended to: ( a ) enable and maintain fair market conduct and effective competition in Singapore’s media industry; ( b ) ensure the availability of a comprehensive range of quality media services in Singapore; ( c ) encourage industry self-regulation in Singapore’s media industry; ( d ) foster further investment in, and the development of Singapore’s media industry; and ( e ) safeguard the public interest. 1.2 Legal Basis for this Code This Code is issued by the Media Development Authority of Singapore (“MDA”) pursuant to section 17(1) of the Media Development Authority of Singapore Act (Cap. 172) (referred to in this Code as the “MDA Act”). 1.3 Legal Effect of this Code This Code imposes binding legal obligations on the persons to which it applies. These obligations are in addition to any applicable obligations contained in the MDA Act, other statutes, regulations, directions, licences or codes of practice. To the extent that any provision of this Code is inconsistent with the provisions of the MDA Act or any other statute, or of any regulation, direction, licence or code of practice issued by MDA, the provisions of the statute, regulation, direction, licence or code of practice shall prevail. 1.4 Persons Subject to this Code MDA will apply this Code to Regulated Persons and, to the extent expressly specified herein, to other persons in accordance with the provisions of the MDA Act . 1.5 Rules of Construction and Definitions ( a ) MDA will give effect to the provisions of this Code in a manner that promotes the purposes of the Code. MDA will apply this Code in the manner most consistent with the regulatory principles specified in paragraphs 1.6.1 to 1.6.8 of this Code. ( b ) Unless otherwise specifically provided, the following definitions shall apply throughout this Code: (i) “Advertiser” means any person that purchases, or intends to purchase, advertising capacity in, or on, any media service provided by a Regulated Person. (ii) For the purposes of this Code, a person shall be deemed to be an “Affiliate” of another person if: (A) that other person has a direct or an indirect ownership interest in the first-mentioned person of at least 5 percent (the other person being referred to then as the “parent”); (B) the first-mentioned person has a direct or an indirect ownership interest in that other person of at least 5 percent (the other person being referred to then as the “subsidiary”); or (C) the first-mentioned person’s parent has a direct or an indirect ownership interest of at least 5 percent in that other person (the other person being referred to then as the “sibling”). An ownership interest is direct if it is held directly by a person in another person. An ownership interest is indirect if it is held through another ownership interest (being direct or indirect) in a person that, itself, has an ownership interest in another person (being direct or indirect). However, a person will not be considered an Affiliate of a “sibling” where the 2 persons’ common “parent” has only a passive ownership interest in the 2 “siblings” ( i.e. where the parent does not in practice cause either subsidiary to take, or prevent either subsidiary from taking, decisions regarding the management and major operating decisions of the person). (iii) “Ancillary Media Service” means the provision of infrastructure, systems, services, information or other resources that are used or intended to be used in connection with the provision or delivery of any media service. Examples of such Ancillary Media Services include video programmes production and newspaper distribution. (iv) “Ancillary Media Service Provider” means any person who provides an Ancillary Media Service. (v) “Applicants” means a Regulated Person and any other person with whom it proposes to enter into a Consolidation. (vi) “Consolidation” means a transaction that falls within one of the situations specified in paragraph 8.4.1 of this Code. (vii) “Consolidation Agreement” means a binding agreement that, upon approval by MDA, and satisfaction of any specified conditions, would result in a Consolidation. (viii) “Consolidation Application” refers to any “Long Form” Consolidation Application or “Short Form” Consolidation Application (as the case may be) under Part 8 of this Code. (ix) “Consolidation Application Fee” means the fee specified in paragraph 8.9 of this Code. (x) “Consolidation Review Period” means the period as specified in paragraph 8.5 of this Code. (xi) “Control” means the ability of a person to exercise decisive influence over the activities of another person whether existing by reason of rights, contracts or any other means, or any combination of rights, contracts, or other means. MDA will presume that a person has Control over another person where the first person has an ownership interest (direct or indirect) of at least 30 percent in the second person, or has the right to exercise or procure the exercise of at least 30 percent of the voting shares of the second person. An ownership interest is direct if it is held directly by a person in another person. An ownership interest is indirect if it is held through a direct or an indirect ownership interest in a person that, itself, has a direct or an indirect ownership interest in another person. (xii) “Consumer” means an end-consumer or any other person who purchases goods, services or access (as the case may be) as inputs for that person’s production, resale or provision of any media service. (xiii) “Designated Archive Operator” refers to any person who is specified as such by MDA pursuant to section 19(1) of the MDA Act. (xiv) “Designated Newspaper Archive Operator” refers to any person who is, by notification in the Gazette pursuant to section 19(1) of the MDA Act, specified by MDA to be a Designated Archive Operator in relation to such person’s archive of photographs and articles published in general circulation newspapers in Singapore, being a person who is, or is affiliated with, a person who publishes any general circulation newspaper. (xv) “Designated Video Archive Operator” refers to any person who is, by notification in the Gazette pursuant to section 19(1) of the MDA Act, specified by MDA to be a Designated Archive Operator in relation to such person’s archive of video programmes, being a person who is, or is affiliated with, a Free-to-Air Television Licensee. (xvi) “Dominant Person” means a Regulated Person who, in the opinion of MDA, has Significant Market Power and includes any Regulated Person so specified by MDA by notification in the Gazette pursuant to section 21(4) of the MDA Act. (xvii) “Essential Resource” means any apparatus, accessory, system, service, information or such other resource of any kind, used or intended to be used in connection with the provision or delivery of any media service provided by a Media Licensee, and which satisfies the criteria set out in paragraph 9.3.1.5 or 9.3.1.6 of this Code and is specified by MDA as an Essential Resource pursuant to section 18(2) of the MDA Act. (xviii) “Free-to-Air Radio Licensee” refers to any person licensed under the Broadcasting Act (Cap. 28) to provide a Free-to-Air Radio Service. (xix) “Free-to-Air Radio Service” means any free-to-air radio service or special interest radio service which is made available to the audience for whom it is intended without payment of a subscription fee. (xx) “Free-to-Air Television Licensee” refers to any person licensed under the Broadcasting Act to provide a Free-to-Air Television Service. (xxi) “Free-to-Air Television Service” means any free-to-air television service or special interest television service which is made available to the audience for whom it is intended without payment of a subscription fee. (xxii) “Horizontal Consolidation” means a Consolidation that involves 2 or more persons who are current competing providers of the same media service (or media services that are close substitutes), at least one of whom is a Regulated Person. (xxiii) “Media Licensee” means any person granted a newspaper permit under the Newspaper and Printing Presses Act (Cap. 206) or who holds a broadcasting licence under the Broadcasting Act (Cap. 28). (xxiv) “media market” includes any product or geographic market segment within a media market. (xxv) “Minister” means the Minister for Communications and Information. [S 657/2013 wef 01/11/2012] (xxvi) “Non-Horizontal Consolidation” means a Consolidation that involves 2 or more persons who are not current competing providers of the same media service (or media services that are close substitutes), at least one of whom is a Regulated Person. (xxvii) “person” includes any individual, any company, partnership or association, and any body of persons, corporate or unincorporated. (xxviii) “Post-Consolidation Entity” means the economic person that would be created if MDA approves the Consolidation Application. (xxix) “Regulated Person” means any person specified by the Minister under section 16(3) of the MDA Act. (xxx) “Significant Market Power”, in relation to a Regulated Person who satisfies the criteria specified in paragraph 5.3 of this Code, means the ability to act without significant competitive restraint from its competitors. (xxxi) “Subscriber” means an end-consumer who agrees to purchase or who has purchased a Subscription Service from a Regulated Person. (xxxii) “subscription fee” means any form of consideration. (xxxiii) “Subscription Service” means a service provided by a Regulated Person to an end-consumer upon the payment of a subscription fee. (xxxiv) “Subscription Television Licensee” refers to any person licensed under the Broadcasting Act to provide a Subscription Television Service. (xxxv) “Subscription Television Service” means any subscription television service, video-on-demand service or special interest television service which is made available to the audience for whom it is intended only upon payment of a subscription fee. ( c ) Various provisions of this Code impose a duty on specified persons to negotiate in “good faith”. The duty of good faith requires that such persons must take diligent measures to maximise the chance of reaching an agreement, on commercially reasonable terms, where feasible. ( d ) This Code is divided into 11 Parts: (i) Part 1 – Introduction; (ii) Part 2 – Public Interest Obligations; (iii) Part 3 – Regulated Persons’ Duties to End-Consumers; (iv) Part 4 – Prohibition on Unfair Methods of Competition; (v) Part 5 – Concept of Dominance; (vi) Part 6 – Special Obligations of Dominant Persons; (vii) Part 7 – Prohibition of Agreements that Restrict or Distort Competition; (viii) Part 8 – Consolidations; (ix) Part 9 – Duty to Provide Access to Essential Resources; (x) Part 10 – Dispute Resolution and Enforcement Procedures; (xi) Part 11 – Revocation, Savings and Transitional. A reference in this Code to a Part shall be construed as a reference to all the paragraphs within the Part. ( e ) Unless otherwise provided, a reference in this Code to a paragraph shall be construed as a reference to the chapeau of the paragraph (if any) and all sub-paragraphs. 1.6 Regulatory Principles The following regulatory principles provide the foundation for this Code and will guide MDA’s implementation of its provisions: 1.6.1 Reliance on Private Negotiations and Industry Self-Regulation To the extent feasible, all persons to which the Code applies should first seek to undertake private negotiations in good faith and self-regulate. 1.6.2 Basis for Regulatory Intervention ( a ) MDA recognises that regulatory intervention may be necessary because: (i) the level of competition in Singapore’s media industry is limited; (ii) certain Regulated Persons continue to have the ability to exercise Significant Market Power; or (iii) of a need to develop effective competition for the benefit of Consumers, to encourage innovation, and to improve productivity in order to achieve public interest goals. ( b ) Therefore, MDA will intervene in any media industry within its jurisdiction, where necessary, to: (i) ensure that persons subject to this Code fulfil their obligations; (ii) protect Consumers from improper business practices; (iii) prevent Regulated Persons from engaging in unfair methods of competition; (iv) prevent Consolidations that are likely to substantially lessen competition in Singapore’s media industry; (v) promote competition; or (vi) otherwise safeguard the public interest. 1.6.3 Proportionality To the extent that regulation is necessary, MDA will seek to impose regulatory requirements that are no broader than necessary to achieve its stated objectives. 1.6.4 Open and Reasoned Decision-Making ( a ) MDA will endeavour to apply the provisions of this Code in a transparent manner. In general, MDA will: (i) provide an opportunity to respond to persons who are the parties to any valid complaint or who are affected by any decision of MDA; and (ii) provide a reasoned explanation of the basis for its actions. ( b ) MDA may publicly release information related to any valid complaint. MDA reserves the right to publicly release such information on a case-by-case basis, at its discretion, and will take the necessary steps to ensure that such release does not prejudice any ongoing investigation. 1.6.5 Non-Discrimination In making decisions pursuant to this Code, MDA will treat similarly situated persons on an equivalent basis. Where appropriate, MDA’s decisions and directions will reflect any relevant differences, in MDA’s opinion, between such persons. 1.6.6 Consultation with Other Regulatory Authorities MDA will, where feasible and appropriate, consult other regulatory authorities in Singapore in order to facilitate the development of a consistent regulatory policy that promotes fair and effective competition and, serves the public interest. 1.6.7 Avoidance of Unnecessary Delay MDA will strive to make all decisions and issue all directions within the timeframes specified herein and, in any case, as soon as reasonably possible. 1.6.8 Technological Neutrality ( a ) MDA’s requirements will reflect the phenomenon of convergence which is reducing differences between platforms, including, but not limited to broadcasting, print and on-line services. Regulatory requirements will be based on clear policy objectives and sound economic principles and, to the extent feasible, will be technology-neutral. ( b ) However, the phenomenon of convergence is in its early stages, with different platforms subject to differing degrees of competition. Therefore, objective application of these principles may result initially in the imposition of different regulatory obligations on Regulated Persons who utilise different platforms. In certain cases, public interest may require the imposition of special obligations on Regulated Persons who use different platforms. 1.7 Modifications or Elimination of Unnecessary Provisions The following provisions describe the means by which MDA will ensure that unnecessary or unduly burdensome regulatory requirements in this Code are reviewed and, to the extent appropriate, modified or eliminated. 1.7.1 Regulatory Review At least once every 3 years, MDA will review this Code to ensure the effective attainment of MDA’s goals. As part of the triennial review process, MDA will provide an opportunity for industry and public comment. The duration of any public consultation exercise will provide reasonable time for consideration of any change to the Code and for interested parties to submit their written representations to MDA. 1.7.2 Requests for Modification or Elimination of Unnecessary Provisions Regulated Persons and Ancillary Media Service Providers may petition MDA, in writing, to eliminate or modify any provision of this Code. The petitioner must specify the provisions of this Code that it seeks to eliminate or modify, and must provide a clear and comprehensive statement of the reasons why such action is justified. The petitioner may propose alternative approaches that, if adopted, would achieve MDA’s objectives in a less burdensome manner. 1.8 Reservations of Authority MDA reserves, among others, the following rights: 1.8.1 Right to Grant Exemptions from Any Provision of this Code Where good cause is shown by any person subject to this Code, MDA may grant such person an exemption from specific provision( s ) of this Code. An exemption may be granted on a single-use basis, temporary, permanent, for a fixed period or effective until the occurrence of a specific event, as may be determined by MDA. Where appropriate, MDA may grant exemptions subject to compliance with specific conditions. 1.8.2 Right to Amend this Code MDA may amend this Code on its own initiative at any time. MDA will generally consult media industry participants before doing so. 1.8.3 Right to Waive Code Provisions Where Necessary in the Public Interest MDA may waive any provision of this Code which imposes an obligation on MDA in any situation in which such action is necessary to achieve the goals of this Code or otherwise safeguard the public interest. 1.9 Effective Date of this Code This Code will come into force on 12th March 2010 at 8.30 am (referred to in this Code as the “Effective Date”). 1.10 Short Title This Code may be referred to as the “Media Market Conduct Code”.