Macau – Telecoms, Media & Internet 2018 Q&A

30 December, 2017

 

1 Overview

 

 

Telecommunications

 

The telecommunications sector is framed by Law no. 14/2001, of August 20 (the Telecommunications Act (http://bo.io.gov.mo/bo/i/2001/34/lei14.asp)), which defines the basis of the telecommunications policy of the MSAR, as well as the general framework for the establishment, management and operation of telecommunication networks and the provision of telecommunications services, although the provisions of said law do not apply to broadcasting services, terrestrial or satellite, in particular to television and sound broadcasting services.  Telecommunications shall hence be understood as the transmission, emission or reception of symbols, signs, writing, images, sounds or information of any nature by wire, radio, electricity or other electromagnetic systems. 

 

Law no. 14/2001 also stipulates the objectives of such policy, which include: to gradually liberalise the installation of public telecommunications networks and the provision of public use telecommunications services; to ensure access to telecommunications, at reasonable tariffs and prices, in a non-discriminatory manner and in conditions of quality and efficiency that meet their needs, to the whole population and also to economic and social activities; to ensure the existence and availability of the universal telecommunications service; to ensure equality and transparency of conditions of competition by promoting the diversification of services in order to increase their supply and quality standards to be compatible with the requirements of users; and to ensure the interoperability of public telecommunications networks, as well as the portability of the customer number, among others.

 

It is incumbent upon the Government to oversee and supervise telecommunications and the activities of telecommunications operators, without prejudice to the specific competencies of the Macau Post Office (in Portuguese, “Direcção dos Serviços de Correios”), as we shall see below.

 

Regarding the hardware part of the telecommunications equation, the Administrative Regulation no. 41/2011, of December 30 (http://bo.io.gov.mo/bo/i/2011/52/regadm41.asp) establishes the system for the installation and operation of fixed public telecommunications networks, understood as telecommunications networks, based on cables, optical fibres, radio-electric or other electromagnetic systems, which connect local fixed points to each other or to the outside of the MSAR, and which support public telecommunications services.  The installation and operation of public fixed telecommunications networks are subject to licensing, in accordance with the terms of this administrative regulation.

 

Furthermore, the Administrative Regulation no. 15/2002, of August 12 (http://bo.io.gov.mo/bo/i/2002/32/regadm15.asp) establishes the regime for the management and allocation of the several telecommunication numbering resources, and the Administrative Regulation no. 41/2004, of December 22 (http://bo.io.gov.mo/bo/i/2004/51/regadm41.asp) establishes the regime of interconnection of public telecommunications networks, which shall be made in an environment of equal conditions of competition, in order to ensure that it is carried out in a timely and reasonable manner, ensuring in particular the inviolability and confidentiality of communications, the non-discrimination in the provision of interconnection, the interoperability of telecommunications services, and the integrity of telecommunications networks, installations and equipment assigned to the interconnection.

 

Regarding the licensing of telecommunications services, the Administrative Regulation 32/2000, of September 11 (http://bo.io.gov.mo/bo/i/2000/37/regadm32.asp) determines the legal regime for provisional licensing of the activities of public network operator and the provision of telecommunications services for public land mobile use, up to a maximum of three licenses, operating in certain frequency bands, and with the adoption of the concepts established by the International Telecommunication Union (ITU).  The operation of public telecommunications networks and the provision of telecommunications services for public land mobile use is further defined by the Administrative Regulation no. 7/2002, of April 15 (http://bo.io.gov.mo/bo/i/89/36/lei08.asp), which establishes that said activity is subject to licensing, in accordance with this administrative regulation.

 

Radio broadcasting

 

Radio broadcasting in the MSAR is framed by Law no. 8/89/M, of September 4 (http://bo.io.gov.mo/bo/i/89/36/lei08.asp), which established the legal regime for radio and television broadcasting.  In accordance with said legislation, the purposes of radio broadcasting are:

 

1. to contribute to the formation of citizens with respect to the ethical and cultural values in force;
2. to contribute to the information of citizens, guaranteeing them the right to inform and to be informed, without hindrance or discrimination; and
3. to contribute to the promotion of social and cultural progress and to the civic and social awareness of citizens.

 

Television broadcasting is defined as a public service and is exercised under a concession contract, whereas the activity of sound broadcasting is subject to the licensing regime, depending its exercise on the attribution of a licence.  Both awards are normally preceded by a public tender.

 

Law no. 8/89/M also creates the Broadcasting Council, an independent body that functions for administrative purposes with the Media Office (which shall be analysed below), with the responsibility to guarantee:

 

1. the independence of the concessionaires and broadcasting operators, especially in face of political and economic power;
2. the safeguard of pluralism and freedom of expression and of thought;
3. the accuracy and objectivity of the information;
4. the quality of the programming; and
5. the defense of the rights and the respect of the obligations set forth in the law.

 

Furthermore, Law no. 8/89/M stipulates that the right of expression of thought and the right to information are exercised without any form of censorship, impediment or discrimination, respecting individual freedoms and the right of citizens to their moral integrity, good name and reputation.  Also, the broadcasting activity is carried out independently and autonomously in the field of programming, and no public or private entity can prevent or impose the broadcasting of programs.  However, broadcasting operators must respect the values of detachment, impartiality and truth in the dissemination of information by refraining from disseminating false or unproven news or giving journalistic treatment to the facts that may distort or mislead the public.

 

Regarding the administrative procedures related to radio communication services, Decree-Law no. 48/86/M, of November 3 (http://bo.io.gov.mo/bo/i/86/44/declei48.asp) establishes the rules by which said administrative procedures shall be governed, in particular as regards to:

 

1. the concession, installation and operation of radio communications networks or stations;
2. radio operators;
3. the approval of radio communications equipment; and
4. the commercialisation of radio communications equipment.

 

Finally, regarding television broadcast, Administrative Regulation no. 8/2014, of April 8 (http://bo.io.gov.mo/bo/i/2014/14/regadm08.asp), authorised the establishment of a commercial company between the MSAR, the Teledifusão de Macau, S.A. and the Macau Post Office, named “Macau Basic Television Channels, Limited” (in Chinese “澳門 基本 電視 頻道 股份有限公司”), with the purpose of providing reception assistance services of basic television channels for residents under the terms of the concession contract.

 

Internet

 

The regime of access and exercise of the activity of provision of Internet services is set out by Administrative Regulation no. 24/2002, of November 4 (http://bo.io.gov.mo/bo/i/2002/44/regadm24.asp), which subjects such activity to licensing under the terms of said administrative regulation and also establishes the requirements and process for granting a licence, the process for requesting a licence, as well as how to exercise the activity of providing Internet services and the corresponding sanctioning regime.

 

Previously to the entry into force of Administrative Regulation no. 24/2002, the provisional licensing of internet services was regulated by Administrative Regulation 35/2000, of October 3 (http://bo.io.gov.mo/bo/i/2000/40/regadm35.asp), which established the requirements to be fulfilled by those interested in the provision of the services described therein.

 

Press

 

The freedom of press in the MSAR is guaranteed by its Basic Law and framed by the Law no. 7/90/M, of August 6 (the “Press Law”) (http://bo.io.gov.mo/bo/i/90/32/lei07.asp), which regulates the exercise of freedom of the press, the right to information and the activity of journalistic, editorial and news organisations.  Namely, the law guarantees and regulates the right to information, freedom of the press, freedom of access to sources of information, guarantee of professional secrecy and independence of journalists, freedom of publication and dissemination, and freedom of enterprise.

 

The law also regulates the organisation of publications and press registration, the exercise of the right of reply, denial, rectification, and the right to clarification, as well as the regime regarding liability for unlawful acts not provided for in the common criminal legislation.

 

Finally, the law created the Press Council, whose duties would have been to ensure:

 

1. the independence of the press, in particular vis-à-vis political and economic power;
2. the pluralism and freedom of expression and of thought by the press; and
3. the protection of the public's right to information.

 

However, the Press Council never came into effect, as its composition was never properly regulated.

In regards to the press registry provided in the Press Law, the Decree no. 11/91/M, of January 28 (http://bo.io.gov.mo/bo/i/91/04/port11.asp) regulates the way in which the press register is processed, through its own media, with the Media Office, described below.

 

The Media Office (in Portuguese, “Gabinete de Comunicação Social”) is defined by the Administrative Regulation no. 7/2012, of March 5 (http://bo.io.gov.mo/bo/i/2012/10/regadm07.asp), which regulates the service of coordination, study and technical support to the Government and services of the Administration, in the area of social communication by said Office, as well as its respective attributions.

 

The Media Office has several responsibilities which were assigned by the Administrative Regulation no. 7/2012, notably:

 

1. to collaborate in the definition of the media policy of the MSAR and to issue an opinion on matters of social communication of interest to the MSAR;
2. to ensure the implementation of media activities in matters of official information;
3. to promote, within its scope or in collaboration with other services of the Administration and companies with total or partially public capital, the disclosure of facts that may contribute to a better knowledge of the reality of the MSAR;
4. to promote and support initiatives to improve the official information dissemination system;
5. to give technical support to the Government and to the services of the Administration in its relations with the organs and agents of the media; to support the organs and agents of the media in the performance of their duties;
6. to study and propose guidelines for political action in support of the media and ensure its implementation and monitoring; to promote and support initiatives aimed at improving the quality of the media sector;
7. to design, plan and execute, by its own means or in collaboration with the other services of the Administration and companies with total or partially public capital, actions of collective interest that aim at motivating and sensitising the public opinion; to foster cooperation and exchange activities with the media, based outside the MSAR;
8. to promote the conclusion of cooperation protocols and liaise with media bodies;
9. to ensure the collection, systematic analysis and processing of written and audiovisual information material from the media;
10. to ensure the editorial activity of the Media Office;
11. to register the entities that own news, editorial and news organisations of the MSAR and its correspondents and other forms of representation of the media located outside the MSAR;
12. to proceed with the registration of MSAR periodicals; and
13. to perform all other attributions legally assigned to it.

 

The Media Office is composed of the following Departments: Information Department; Department of Studies and Promotion; Computer and Archive Division; and Administrative and Financial Division.

 

Other legislation

 

In regards to entities which are in contact with or may generally influence the telecommunications sector, we would first underline the Macau Post Office, a body with legal personality and administrative, financial and patrimonial autonomy, with the purpose of providing public postal services and of regulating, supervising, promoting and coordinating all activities related to the telecommunications sector in the MSAR, and also of serving as a credit institution, which organic regulation was first approved by the Decree-Law no. 2/89/M, of January 9 (http://bo.io.gov.mo/bo/i/89/02/declei02.asp).

 

The Macau Post Office integrates several departments, of which we highlight:

 

• the Postal Operations Department, which is the operational sub-unit in the area of ​​postal traffic with origin, transit or destination in the MSAR, as well as postal relations of an operational nature with international institutions;
• the Electronic Services Department, which is the organic sub-unit responsible for electronic certification services, secure electronic postal services, development of CTT postal and computer technology systems, and electronic commerce services;
• the Telecommunications Management Department, which is the sub-unit responsible for supporting the definition of telecommunications policy, including telecommunications and broadcasting services, and for the management and monitoring of its activities, with the exception of broadcasting content; and
• the Department of Information Technology Development and Management of Resources, which is the sub-unit responsible for supporting the definition of IT policies, promoting the application of these technologies, promoting cooperation in this field with entities outside the MSAR, as well as for the planning and management of public telecommunications resources and the coordination of the use of telecommunications resources in Macau and abroad.

 

As for the market’s most significant players, kindly note the following:

 

Telephone/internet

 

• Companhia de Telecomunicações de Macau S.A.R.L. (revenue in 2016: 1,081,156,035 MOP (http://bo.io.gov.mo/bo/i/89/02/declei02.asp)).
• Hutchison Telephone, Macao.
• Smartone Mobile Communications (Macao) Ltd.              
• China Telecom (Macau) Cl. Ltd.
• MTEL – Telecommunication Company Limited.

 

Television/Radio

 

• TDM – Teledifusão de Macau, S.A. (revenue in 2016: 18,980,000 MOP (http://portugues.tdm.com.mo/report/2016FIN_report_pt.pdf)).
• TV Cabo Macau, S.A.

 

Press

 

• Diário de Macau – Empresa Jornalística e Editorial, Lda.
• Edições Va Kio, Limitada.

 

(a) Telecoms and Internet

 

• Law no. 14/2001, of August 20 (the Telecommunications Act), which defines the basis of the telecommunication policy of the MSAR, as well as the general framework for the establishment, management and operation of telecommunications networks and the provision of telecommunications services.  As stated above, the provisions of said law do not apply to broadcasting services, terrestrial or satellite, in particular to television and sound broadcasting services.
• Administrative Regulation no. 24/2002, of November 4, which sets out the regime of access and exercise of the activity of provision of Internet services and subjects such activity to licensing under the terms of said administrative regulation.

 

(b) Audio-visual media distribution

 

• Law no. 8/89/M, of September 4, which established the legal regime for radio and television broadcasting and creates the Broadcasting Council, an independent body that functions for administrative purposes with the Media Office.
• Law no. 7/90/M, of August 6 (the “Press Law”), which regulates the exercise of freedom of the press, the right to information and the activity of journalistic, editorial and news organisations.
• Administrative Regulation no. 7/2012, of March 5, which regulates the service of coordination, study and technical support to the Government and services of the Administration, in the area of ​​social communication by the Media Office (in Portuguese, “Gabinete de Comunicação Social”), as well as its respective attributions.
• Decree-Law no. 2/89/M, of January 9, which first approved the organic regulation of the Macau Post Office, a body with legal personality and administrative, financial and patrimonial autonomy, with the purpose of providing public postal services and of regulating, supervising, promoting and coordinating all activities related to the telecommunications sector in the MSAR, and also of serving as a credit institution.

 

• the Telecommunications Management Department, which is the sub-unit responsible for supporting the definition of telecommunications policy, including telecommunications and broadcasting services, and for the management and monitoring of its activities, with the exception of broadcasting content;
• the Electronic Services Department, which is the organic sub-unit responsible for electronic certification services, secure electronic postal services, development of CTT postal and computer technology systems, and electronic commerce services; and
• the Department of Information Technology Development and Management of Resources, which is the sub-unit responsible for supporting the definition of IT policies, promoting the application of these technologies, promoting cooperation in this field with entities outside the MSAR, as well as for the planning and management of public telecommunications resources and the coordination of the use of telecommunications resources in Macau and abroad.

 

(b) Audio-visual media distribution sectors

 

As indicated above, the Media Office is defined by the Administrative Regulation no. 7/2012, of March 5 (http://bo.io.gov.mo/bo/i/2012/10/regadm07.asp), which regulates the service of coordination, study and technical support to the Government and services of the Administration, in the area of social communication by said Office, as well as its respective attributions.  Such Office is in the hierarchical or tutelary dependence of the Chief Executive, in accordance with Administrative Regulation no. 6/1999, of December 20.

 

Law no. 8/89/M, of September 4, established the legal regime for radio and television broadcasting and created the Broadcasting Council, an independent body that functions for administrative purposes with the Media Office, with the responsibility to guarantee:

 

1. the independence of the concessionaires and broadcasting operators, especially in face of political and economic power;
2. the safeguard of pluralism and freedom of expression and of thought;
3. the accuracy and objectivity of the information;
4. the quality of programming; and
5. the defense of the rights and the respect of the obligations set forth in the law.

 

As a rule, in accordance with the MSAR Basic Law (http://bo.io.gov.mo/bo/I/1999/leibasica/index.asp), the capitalist system in Macau shall remain unchanged for 50 years after the return of Macau to the People’s Republic of China.  Also, the Basic Law expressly states that the right to property of companies and investments from outside the MSAR are protected by law.

 

In regards to the telecommunications sector, Law no. 14/2001 provides that the concession and licensing of the establishment and operation of networks and the provision of telecommunications services is incumbent upon the Government.  The same Law further stipulates that the operation of public telecommunications services requires the establishment, management and operation of the infrastructures that constitute the basic telecommunications network and the provision of fixed telephone services, as well as other services considered fundamental, under the conditions defined in the applicable legislation or in concession contracts.

 

The legal regime for the installation and operation of fixed public telecommunications networks (Administrative Regulation no. 41/2011) states that only entities which are commercial companies regularly incorporated in the MSAR, and whose corporate purpose includes the exercise of the activity to be licensed, can be licensed.  The same is to be said for the legal regime for the provision of internet service providers (Administrative Regulation no. 24/2002), which requires applicants to be commercial companies regularly incorporated in the MSAR, and whose corporate purpose includes the provision of Internet services to be licensed.

 

Regarding radio and television broadcast, Law no. 8/89/M determines that the television broadcast activity is subject to a concession contract and may be granted to any legal person that is incorporated as such, has its head office in Macau, whose purpose is the exercise of the activity to be granted and offers guarantees of suitability, technical qualification and financial capacity.  Similarly, the activity of radio broadcasting is subject to a permit and may be exercised by any legal person having its head office in Macau and offers guarantees of suitability, technical qualification and financial standing.

 

Under the Press Law (Law 7/90/M), the constitution of newspaper companies, editorial companies and news organisations is free, in accordance with the applicable law.  However, the registration of entities that own news, editorial and news organisations, indicating their name or company name, permanent establishments, composition of the corporate bodies and distribution of share capital, as well as the registration of correspondents and other forms of representation of media outlets located outside the MSAR, with the indication of their complete identification and the information body for which they perform their functions, must be made with the Media Office prior to the beginning of any such activities.

 

Hence, the sectors indicated above are generally open to foreign investment – however, they are still subject to licensing/authorisation under the applicable legislation.

 

2 Telecoms

 

General

 

The MSAR, China has been a WTO member since 1 January 1995 and a member of GATT since 11 January 1991.  

 

Furthermore, the MSAR Basic Law also determines that Macau shall continuously effectuate its free trade policy with freedom in the movement of goods, intangible assets and capital.

 

Macau SAR has not made commitments under GATS regarding telecommunications (http://bo.io.gov.mo/bo/I/1999/leibasica/index.asp).  The telecommunications reference paper has not been adopted nor implemented in Macau SAR.

 

 

As indicated above, Law no. 14/2001 defines the foundations of the telecommunications policy of the MSAR, as well as the general framework which regulates the establishment, management and exploration of telecommunications networks and the provision of telecommunications services rendered.  The aforesaid law stipulates that it is the competence of the Government to superintend and supervise the telecommunications sector, as well as the activity of telecommunications operators.

 

Also, the objectives of such policy include: to gradually liberalise the installation of public telecommunications networks and the provision of public use telecommunications services; to ensure access to telecommunications, at reasonable tariffs and prices, in a non-discriminatory manner and in conditions of quality and efficiency that meet their needs, to the whole population and to economic and social activities; to ensure the existence and availability of the universal telecommunications service; to ensure equality and transparency of conditions of competition by promoting the diversification of services in order to increase their supply and quality standards compatible with the requirements of users; and to ensure the interoperability of public telecommunications networks, as well as the portability of the customer number, among others.

 

As indicated above, the Government of the MSAR has the responsibility to oversee and supervise telecommunications and the activity of telecommunications operators.  Furthermore, the Macau Post Office is the entity whose purpose is to provide public postal services and also to regulate, supervise, promote and coordinate all activities related to the telecommunications sector in the MSAR, as per the Decree-Law no. 2/89/M.  Within the Macau Post Office, the Telecommunications Management Department is the sub-unit responsible for supporting the definition of telecommunications policy, including telecommunications and broadcasting services, and for the management and monitoring of its activities, with the exception of broadcasting content.

 

Although the Macau Post Office is a body with legal personality and administrative, financial and patrimonial autonomy, under Decree-Law no. 2/89/M, it is under the hierarchical or tutelary dependence of the Secretary for Transport and Public Works, in accordance with Administrative Regulation no. 6/1999, and therefore is not independent from the Government of the MSAR.

 

There are no MSAR regulatory authorities for competition law.

 

Under the Law no. 9/1999, of December 20 (http://bo.io.gov.mo/bo/i/1999/01/lei09.asp), which approved the Basic Law on Judicial Organisation, the appeals of decisions of the Macau Post Office shall be made with the Administrative Courts of Macau.  If, however, the decision comes from the Chief Executive or from the Secretary of Transportation and Public Works (namely, regarding the imposition of fines), the appeal shall be lodged with the Second Instance Court, under the same legislation.

 

The procedure for appeal shall follow the regime set out in the Code of Administrative Procedure Litigation, approved by the Decree-Law no. 110/99/M, of December 13 (http://bo.io.gov.mo/bo/i/99/50/codpacpt/declei110.asp).

 

Regarding competition law, as previously stated, no such regulatory entities exist in the MSAR – the international trade obligations of Macau under the WTO framework or its bilateral trade relations with China and European Union have not prompted the adoption of specific competition law regime.

 

There are nonetheless certain provisions in the Commercial Code (article 156 and following), approved by Decree-Law no. 40/99/M, of August 3 (http://bo.io.gov.mo/bo/i/99/31/codcompt/declei40.asp), which provide for the indemnity of damages caused by anti-competition practices.  Article 170 of the Commercial Code provides that the legal action by unlawful competition must be filed before a court within one year from the date in which the person sustaining the damage was aware or could necessarily have had knowledge of the person who provoked them, but never after three years from the date in which they occurred.  Also, article 172 of the Commercial Code provides that damages suffered by violations of the competition legislation in Macau are indemnifiable.

 

Licences and Authorisations

 

The operation of public telecommunications networks and of public telecommunications services can be carried out by duly licensed telecommunications enterprises, under regulations to be approved by the Government regarding the access to a specific activity.  The licence to exercise such activities shall define the terms and conditions under which they are authorised to carry out the activity, inter alia universal service obligations and the infrastructures owned by authorised telecommunications companies which they can install for the operation and the connection to the basic telecommunications network.

 

Under the Administrative Regulation no. 41/2011, the installation and operation of public fixed telecommunications networks are subject to licensing, in accordance with the terms of this administrative regulation.  The same applies to the operation of public telecommunications networks and to the provision of telecommunications services for public land mobile use, which is also subject to licensing, in accordance with Administrative Regulation no. 7/2002, and to the access and exercise of the activity of provision of Internet services, under Administrative Regulation no. 24/2002.

 

Hence, these various applicable legislations do not differentiate between general and individual authorisations for the purpose of providing telecommunications services.

 

This is not applicable.

 

Public telecommunications networks and public land mobile telecommunications licence (Administrative Regulation no. 7/2002)

 

The allocation of licences under Administrative Regulation no. 7/2002 is subject to a public tender, and only those entities that meet the following requirements can be licensed:

 

i.possess the nature of a commercial company regularly incorporated in the MSAR, whose corporate purpose includes the exercise of the activity to be licensed, with a capital stock of no less than MOP 10 000 000.00 (ten million patacas);

ii.have the technical capacity and appropriate experience to fulfil the obligations and other specifications of the license that they propose to obtain, having, in particular, a staff qualified to carry out the activity;

iii.have adequate economic and financial capacity; and

iv.possess updated and adequate accounting for the analyses required for the project that they seek to develop.

 

The entities to which licenses are granted are obliged to reinforce the deposit to the amount set in the public tender regulations, within 30 days after the publication of the dispatch ordering the allocation of the licence, in order to guarantee the obligations assumed and the fines or damages that may be due under the licensed activities.

 

The licensed entity is subject to the payment of the following fees, whose amounts and payment deadlines are set by order of the Chief Executive:

 

a)emission and renewal fees; and

b)an annual operating fee, corresponding to a percentage of the gross revenues from operating the services provided under the licensed activities.

 

Licences are granted for a maximum period of eight years, and may be renewed for the same period – however, the duration of the licence is not defined by Administrative Regulation no. 7/2002 and, therefore, it is decided by the Chief Executive on a case-by-case basis.

 

The licence is transferable, whether for a consideration or free of charge, subject to prior authorisation by the Chief Executive.  However, the entity to whom the licence is transmitted shall, under penalty of nullity of the transfer, fulfil the requirements referred to above.

 

Public fixed telecommunications networks licence (Administrative Regulation no. 41/2011)

 

Regarding the operation of public fixed telecommunications networks, the allocation of licences is subject to a public tender, and only entities that fulfil the following requirements can be licensed:

 

i.possess the nature of a commercial company regularly incorporated in the MSAR, whose corporate purpose includes the exercise of the activity to be licensed;

ii.are endowed with a fully paid up capital of no less than MOP50,000,000;

iii.have the technical capacity and appropriate experience to fulfil the obligations and other specifications of the license that they propose to obtain, having, in particular, a staff qualified to carry out the activity;

iv.have adequate economic and financial capacity; and

v.have up-to-date financial information appropriate to the analysis of the proposed development project.

 

The entities to which licences are issued are obliged to provide a deposit of MOP2,000,000, within 30 days of the publication of the allocation order, to guarantee the obligations assumed and the fines or indemnities that may be due within the scope of the licence.

 

The licensed entity is also subject to the payment of licence fees and renewal fees, as well as of a pecuniary fee for the operation of the licensed activities, the amounts and payment deadlines of which are set by order of the Chief Executive.

Licences are granted for a maximum period of 15 years, and may be renewed for periods not exceeding the licensed period – however, the duration of the licence is not defined by Administrative Regulation no. 41/2011 and, therefore, it is decided by the Chief Executive on a case-by-case basis.

 

The licence is transferable, whether for a consideration or free of charge, subject to prior authorisation by the Chief Executive.  However, the entity to whom the licence is transmitted shall, under penalty of nullity of the transfer, fulfil the requirements referred to above.

 

Internet services licence (Administrative Regulation no. 24/2002)

 

The request for the granting of a licence is formulated through an application addressed to the Chief Executive, and only entities fulfilling the following requirements may be licensed as Internet service providers:

 

i.possess the nature of a commercial company regularly incorporated in the MSAR, whose corporate object includes the provision of Internet services;

ii.possess the technical capacity and appropriate experience to fulfil the obligations and other specifications of the licence that they wish to obtain, having, in particular, a staff qualified to carry out said activity;

iii.have adequate economic and financial capacity; and

iv.have updated and adequate accounting for the analyses required for the project that they intend to develop.

 

The request for the granting of a licence is made through an application addressed to the Chief Executive, signed by a person with powers to bind the applicant, with the signature notarised in that capacity, and accompanied by the following documents:

 

• proof of compliance with the requirements referred to above;
• detailed proposal on the operation of the services, embodied in a technical plan to be developed, including, in particular, the configuration of the technological systems to be used, with reference to the access methods and the necessary equipment, as well as the development planning of the systems and services;
• economic and financial plan including the price system to be adopted;
• organisational structure of the applicant, including the identification and curriculum of its principal officials, and, where possible, financial statements and audit reports on the accounts for the last three financial years; and
• any other information which the applicant considers relevant for the assessment of his application.

 

The Telecommunications Management Department is responsible for analysing and issuing an opinion on the licence application, and may request from the applicants any clarifications and additional elements that may prove necessary for their complete analysis.

 

The license is valid for a maximum period of five years, and may be renewed for periods not exceeding five years, upon request of the provider, and at least 90 days before the end of the period of validity.

 

The licence is transferable, whether for a consideration or free of charge, subject to prior authorisation by the Secretary for Transport and Public Works.  However, the entity to whom the licence is transmitted shall, under penalty of nullity of the transfer, fulfil the requirements referred to above.

 

Public and Private Works

 

In accordance to Law no. 14/2001, the expropriation and constitution of administrative easements necessary for the construction and radio-electric protection of the facilities necessary for the supervision of the use of the radio-electric spectrum, as well as for the installation, protection and conservation of the infrastructures of public telecommunications networks, is allowed under the terms of the law.

 

The regime for expropriation and constitution of administrative easements is governed by Law no. 12/92/M, of August 17 (http://bo.io.gov.mo/bo/i/92/33/lei12.asp), which defines the rules regarding the regime of expropriations for public utility, and also by Decree-Law no. 43/97/M, of October 20 (http://bo.io.gov.mo/bo/i/97/42/declei43.asp), which further develops said legal regime.

 

Also, Administrative Regulation no. 41/2011 stipulates that, without prejudice to compliance with the legislation and other regulations in force in the MSAR and after obtaining the appropriate administrative authorisations, the licensed entities are entitled, inter alia, to:

 

• perform works of installation, repair and maintenance of telecommunications networks and conduits, surface and underground, as well as in public and private buildings, including installation of user terminal equipment;
• install telecommunication networks on land in the public or private domain of the MSAR or other legal persons governed by public law; and
• access private lands and buildings, with the consent of their owners, as well as public places, through agents and vehicles, provided that they are properly identified, whenever the nature of the work so requires.

 

It should be noted that the execution of the civil construction works or of the alteration of the installations inherent to the exercise of the rights indicated above requires prior opinion on the issuance of licences under the responsibility of the Department of Soil, Public Works and Transport Services to be issued by DSRT.

 

Access and Interconnection

 

The Administrative Regulation no. 41/2004 establishes the regime for interconnection of public telecommunications networks, which shall be made in an environment of equal conditions of competition, in order to ensure that it is carried out in a timely and reasonable manner.  The Administrative Regulation no. 41/2004 establishes the following essential principles and requirements of interconnection:

 

• inviolability and confidentiality of communications;
• non-discrimination in the connection offer;
• interoperability of telecommunications services;
• integrity of telecommunications networks, as well as installations and equipment connected to interconnection; and
• accounting separation for legally provided interconnection entities.

 

It is the responsibility of the Government, at the request of either party in a dispute, to resolve the conflicts arising from the interconnection operation.  The intervention of the Government must be requested within a maximum of 30 days from the date of verification of the event that gave rise to the conflict, and the decision of the Government is given within a maximum period of sixty days from the date of the full investigation of the case with the elements necessary for its analysis.

 

The decision of the Government can be appealed, under the terms of the general law.

 

The Administrative Regulation no. 41/2004 provides that the operators of basic telecommunications network shall draw up an interconnection reference document which shall include at least the following elements:

 

1) Definitions of concepts used.

2) Principles of interconnection.

3) Description of the interconnection service.

4) Technical standards.

5) Interconnection points.

6) Quality of service standards.

7) Interconnection prices.

8) Billing processes and conditions of payment.

9) Management, operation, maintenance and repair.

10) Confidentiality of communications.

11) Suspension and termination of service.

12) Conflict Resolution.

13) Applicable legislation.

 

The interconnection reference documents and their amendments are subject to Government approval, after which the tendering operator must ensure that they are properly advertised.

 

In accordance with the Administrative Regulation no. 41/2004, interconnection prices should be set in a transparent, economically viable and cost-oriented manner, and all components of interconnection prices should be appropriately disaggregated so that operators are not burdened with infrastructure, equipment or service charges that are not necessary for the required interconnection.

 

Furthermore, the law determines that the Government shall periodically assess interconnection prices, taking into account the public interest, market evolution, cost of capital and cost developments as a result of technological development.  For this purpose, the Government may request interconnection providers to justify their prices and show that they are calculated based on actual costs of the service, including a reasonable rate of cost of capital, and can determine its cost adjustment, based on separate accounting information.

 

As indicated above, the following entities must possess accounting separation:

 

a)entities who are operators of the basic telecommunications network; and

b)entities who simultaneously provide competing telecommunications services for public use.

 

Also, without prejudice to the directives of principle issued by the Government, in accordance with actual requirements and in accordance with internationally accepted standards, the separate accounting system for interconnection activity shall include the following elements:

 

1) the cost model used, including the calculation basis;

2) the identification of all individual components of costs which together constitute the interconnection price, including the cost of capital invested;

3) the method of calculating the cost of capital;

4) cost objects; and

5) the accounting conventions and principles used.

 

No specific provisions exist regarding functional or legal separation.

 

Without prejudice to the legislation described above, no specific regulation exists regarding high-speed broadband networks.

 

Price and Consumer Regulation

 

Under the Administrative Regulation no. 7/2002, licences shall lay down the terms and conditions for, inter alia, supply conditions, including non-discriminatory pricing systems.

 

Also, the same regulation determines that the prices of services provided by the licensed entities are approved by the Government, which may determine their total or partial liberalisation, by order of the Chief Executive.  The prices should be fixed as close as possible to the cost of services rendered, and the Government may set ceilings, taking into account the need for a commercial income on the investment made.

 

Therefore, prices are not imposed but are subject to the control of the Government.

 

There is no specific stipulation regarding the provision of electronic communications services to consumers such as universal service.

 

Law no. 14/2001 determines that the telecommunication policy aims to ensure to the whole population and to economic and social activities the access to telecommunications, at reasonable rates and prices, in a non-discriminatory manner and in conditions of quality and efficiency that correspond to its needs and ensure the existence and availability of the universal telecommunications service.

 

In accordance to said law, the set of obligations inherent to the universal service of telecommunications shall be determined in an evolutionary way, in accordance with technological progress, market development and changes in demand by users, taking into account the requirements of harmonious and balanced economic and social development.

 

As regards the operation of public telecommunications networks and telecommunications services for public use, the Law provides that the licence titles for the exercise of the above activities define the terms and conditions under which they are authorised to carry out the activity, namely the obligations of universal service.  Hence, the respective licence may stipulate stricter rules/objectives regarding universal service.

 

Numbering

 

Telephone numbers and network identifying codes are allocated under the Administrative Regulation no. 15/2002 – this regulation further stipulates that the numbering resources are part of the public domain and their use is subject to prior assignment, in accordance with this Administrative Regulation and the Numbering Plan, approved by Dispatch of the Secretary for Transport and Public Works no. 43/2016, of October 17 (http://bo.io.gov.mo/bo/i/2016/42/despstop.asp#43).

 

The management and allocation of numbering resources shall comply with the principles of non-discrimination, fairness, transparency and effective and efficient use and shall not prejudice the freedom of choice of the operator or provider or impede number portability, the functionality through which users who request it can keep their number or numbers, regardless of the operator or service provider offering the respective service.

 

With regard to the Numbering Plan, it must have numbering capacity and management flexibility in order to ensure the development of telecommunications, and be capable of adapting to new technologies and services.

 

As stated above, Administrative Regulation no. 15/2002 determines that the management and allocation of numbering resources shall not prejudice the freedom of choice of the operator or provider or impede number portability.

 

3 Radio Spectrum

In accordance with Law 8/89/M, the radio spectrum belongs to the public domain of the MSAR and the Chief Executive may allocate other frequency bands of the broadcasting service already available or which, as a consequence of technological development, have been added to the International Frequency Allocation Plan.

 

Furthermore, Decree-Law no. 18/83/M, of March 12, determines that the Chief Executive is responsible for all activities related to the management, general administration and policy of radio communications, and that such administration shall be exercised through the Macau Post Office, which shall be responsible for:

 

a)management of the radio electric spectrum;

b)support to the Government in the coordination, tutelage and planning of the radio communications sector; and

c)representation of said sector.

 

In the area of management of the radio spectrum management, the Macau Post Office is responsible for:

 

i.the assignment of frequencies;

ii.the setting and monitoring of conditions of use;

iii.the supervision of radio electric installations, with the exception of those related to the Security Forces;

iv.the control and monitoring of radio interference; and

v.the application of sanctions, when applicable.

 

As previously indicated, the Telecommunications Management Department is the sub-unit with the Macau Post Office which is responsible for supporting the definition of telecommunications policy, including telecommunications and broadcasting services, and for the management and monitoring of its activities, with the exception of broadcasting content.  The Telecommunications Management Department is responsible, inter alia, for standardising and managing telecommunication and broadcasting activities, in particular to monitor compliance with the provisions of legislation, regulations, licences, contracts or regulatory directives applicable to network operators and service providers, with the exception of broadcasting content.

 

As indicated above, Law no. 8/89/M determines that the television broadcast activity is subject to a concession contract and may be granted to any legal person that is incorporated as such, has its head office in Macau, whose purpose is the exercise of the activity to be granted and offers guarantees of suitability, technical qualification and financial capacity.  

 

Similarly, the activity of radio broadcasting is subject to a permit and may be exercised by any legal person having its head office in Macau and offers guarantees of suitability, technical qualification and financial standing.

 

The installation and operation of television and sound broadcasting equipment is subject to compliance with the legal provisions on radio communications in force in the MSAR (namely, decree no. 185/93/M, of June 28, and Decree-Law no. 48/86/M, of November 3) and must be requested from the Macau Post Office.

 

Furthermore, as was already referred to above, the Macau Post Office is responsible for the assignment of frequencies and the setting and monitoring of conditions of use (among others).  No specific procedures are presented to allocate spectrum between candidates.

 

As a rule, according to Decree-Law no. 18/83 / M, no person in the MSAR or on board a ship or aircraft subject to its laws may hold in its possession transmitting, receiving or radio communication transmitting equipment, nor to establish or use a station or a radio communication network, without prior governmental authorisation.

 

However, Decree-Law exempts radio equipment from governmental authorisation, namely the radio communications equipment used by the Security Forces and the Judicial Police which are needed for the collective needs of security and public order, as well as the following equipment:

 

a)equipment of reduced power and small scope, included in categories to be fixed by governmental order; and

b)receivers of radio and television broadcasting services.

 

Regarding the activity of television and radio broadcasting, Law no. 8/89/M stipulates that the granting of concessions (for television broadcasting) and the award of permits (for radio broadcasting) shall be preceded by a call for tenders, except where duly motivated and reasoned reasons advise direct adjustment.

 

The fees and fines applicable to radio services were approved by Administrative Regulation no. 16/2010, of July 12 (http://bo.io.gov.mo/bo/i/2010/28/regadm16.asp), which sets out the “General Table of Fees and Fines Applicable to Radio Services”.

 

Under Law 8/89/M, for both television and radio broadcasting concessions/permits, the transmission, by any title, of rights or social participation in the broadcasting companies, is dependent on previous authorisation by the Chief Executive.

 

Furthermore, any such transmission, by any title, of rights or social participation against the provisions of this law is null and void.

 

Under Law 8/89/M, the conveyance of the concession is allowed as long as it is duly substantiated and authorised by the grantor.  Regarding radio broadcast permits, the same may be transmitted, free of charge or not, together with the broadcasting station concerned to the licensed wave type, after three years of its attribution or renewal.  However, the transmission is subject to prior authorisation by the Chief Executive.

 

4 Cyber-security, Interception, Encryption and Data Retention

 

Law no. 16/92/M, of September 28 (http://bo.io.gov.mo/bo/i/92/39/lei16.asp), establishes and regulates the inviolability and protection of the secrecy of postal communications, telecommunications and other private communications.  It also prohibits any interference by public authorities in postal communications and telecommunications, except in cases provided for in this law and other applicable legislation.

 

Under the terms of Law 16/92/M, the duty of secrecy in communications covers the secrecy of postal communications (which includes a prohibition on reading any correspondence, even if not contained in a closed envelope, and on opening closed correspondence) and the secrecy of telecommunication (which consists in the prohibition of learning the content of any message or information, except to the extent that the execution of the service so requires).

 

The secrecy of postal communications and telecommunications also covers the prohibition on disclosure to third parties of the content of any message or information which has been duly or unduly known and of the relationship between senders and recipients and their addresses.

 

Furthermore, the Chief Executive Dispatch no. 186/2013, of June 24, created the Public Registered Postal E-mail Service and approved the respective regulation – said Service consists of the acceptance by the Public Operator of electronic messages sent by computer means by an authenticated sender in order to be delivered, also by computer means, to the recipient or authenticated recipients, indicated by the sender.

 

Also, Law no. 11/2009, of July 6 (http://bo.io.gov.mo/bo/i/2009/27/lei11.asp), establishes the criminalisation of computer crimes and also determines a regime for collecting evidence in electronic format (including telecommunications).

Finally, the treatment of personal data is regulated by Law no. 8/2005, of August 22 (http://bo.io.gov.mo/bo/i/2005/34/lei08.asp), which establishes the legal regime for the processing and protection of personal data.

 

As indicated above, Law no. 16/92/M establishes and regulates the inviolability and protection of the secrecy of said communications.  It also prohibits any interference by public authorities in postal communications and telecommunications, except in cases provided for in this law and other applicable legislation.

 

Also, Administrative Regulation no. 41/2004 establishes the regime of interconnection of public telecommunications networks, which shall be made in an environment of equal conditions of competition, in order to ensure that it is carried out in a timely and reasonable manner, ensuring in particular the inviolability and confidentiality of communications, the non-discrimination in the provision of interconnection, the interoperability of telecommunications services, and the integrity of telecommunications networks, installations and equipment assigned to interconnection.

 

The Macau Criminal Procedure Code (Law 17/96/M, of August 12) stipulates that the seizure of letters, packages, valuables, telegrams or any other correspondence can only be made, under penalty of nullity, when authorised or ordered by judicial order and provided there are reasonable grounds to believe that:

 

a)the correspondence was issued by the suspect or addressed to him, even if under a different name or through a different person;

b)a crime punishable by a prison sentence of a maximum limit of more than three years is at stake; and

c)the inquiry will be of great interest for the discovery of the truth or for the proof.

 

Also, the judge who authorised or ordered the proceedings is the first person to take note of the content of the seized correspondence; if he/she considers it relevant to the proof, it will be attached to the procedure; if not, it shall be returned to the relevant person and it cannot be used as a means of proof, also the judge is bound by a duty of secrecy in relation to what he has learned and is not considered to be of interest for evidentiary purposes.

 

Further, in the course of the investigation, it is the sole responsibility of the investigative judge to order or authorise seizures of correspondence (as described above), or interceptions or recordings of telephone conversations or communications, in accordance with the Criminal Procedure Code, and any other acts the law expressly subjects to an order or authorisation of the investigative judge.

 

Therefore, only a judge may access private communications within the scope of a criminal procedure.

 

However, in what pertains to the use of telecommunications, the Commission Against Corruption, an independent body that only responds to the Chief Executive (created by Law no. 10/2000, of August 14 (http://bo.io.gov.mo/bo/i/2000/33/lei10.asp)) whose mission is to promote actions to prevent and investigate crimes of corruption and related crimes of fraud within the framework of public and private sector activities, as well as to serve as Ombudsman, promoting the defence of rights, freedoms, guarantees and legitimate interests of persons, in accordance with their attributions, shall have access, in any form, including computerised form, to the information contained in the files of the Administration and of public and autonomous entities, necessary for the performance of its duties, and for the purpose of criminal investigations, to information contained in the files of the operators of telecommunications services regarding the identity of the owners of telecommunications means.

 

Finally, Law no. 11/2009, of July 6 (http://bo.io.gov.mo/bo/i/2009/27/lei11.asp), establishes the criminalisation of computer crimes and also determines a regime for collecting evidence in electronic format (including telecommunications).  Under this legislation, the access to private communications shall follow the rules of the Criminal Procedure Code (namely regarding the access to private correspondence).

 

No such rules exist – as per the Criminal Procedure Code, the interception or recording of telephone conversations or communications can only be ordered or authorised, by order of the judge, if there is reason to believe that such diligence will be of great interest for the discovery of the truth or for the proof of crimes:

 

a)punishable by imprisonment with a maximum limit of more than three years;

b)relating to trafficking in narcotic drugs;

c)in relation to prohibited weapons, to explosive devices or materials or similar;

d)of smuggling; or

e)of injuries, threats, coercion and intrusion in private life, when committed by telephone.

 

Without prejudice to the stipulations regarding criminal procedures and the powers of the Commission Against Corruption, no such terms exist.

 

Without prejudice to the Public Registered Postal E-mail Service (regarding the encryption of electronic messages by such entity), no specific rules exist regarding encryption.

 

No minimum deadline for retaining data exists.

 

5 Distribution of Audio-Visual Media

 

Regarding the press, as indicated above, the main legislation is the Law no. 7/90/M, which regulates the exercise of freedom of the press, the right to information and the activity of journalistic, editorial and news organisations.

 

The law also regulates the organisation of publications and press registration, the exercise of the right of reply, denial, rectification, and the right to clarification, as well as the regime regarding liability for unlawful acts not provided for in the common criminal legislation.  As stated above, the Decree no. 11/91/M, of January 28 (http://bo.io.gov.mo/bo/i/91/04/port11.asp) regulates the way in which the press register is processed, through its own media, with the Media Office.

 

Without prejudice to the stipulations of the Decree-Law no. 43/99/M, of August 16 (http://bo.io.gov.mo/bo/i/99/33/declei43.asp), regarding the regime of copyright and related rights, no specific stipulations regarding the distribution of audio-visual media exist in Macau.

 

5.2 Is content regulation (including advertising, as well as editorial) different for content broadcast via traditional distribution platforms as opposed to content delivered over the internet or other platforms? Please describe the main differences.

 

This is not applicable.

 

This is not applicable.

 

6 Internet Infrastructure

 

We have no knowledge of any decision in this matter.

 

Under Administrative Regulation no. 24/2002, the provider of Internet services shall, inter alia, take the necessary measures to ensure the inviolability and confidentiality of communications of the services provided, as well as for the protection of personal data and privacy, ensure the integrity and inviolability of computer networks and systems, and observe the laws in force in the MSAR, as well as the orders, injunctions, commands, directives, recommendations and instructions that, under the legal terms, are issued by the competent authorities.

 

Similarly, Law no. 14/2001 determines that the users of telecommunications services are guaranteed, in particular, the right to inviolability and the confidentiality of their communications, in accordance with the law.

 

Therefore, if there is an injunction or court order in a given procedure regarding the infringement of rights, telecommunications operators must provide the requested assistance.

 

Law no. 14/2001 determines that operators of the public telecommunications service must guarantee the use of their networks by all telecommunication operators on an equal footing, by allowing the interconnection of telecommunications networks used by other operators, in order to guarantee access and communications among users of the services provided by different operators.

 

It further prohibits telecommunication operators from engaging in any practice which distorts a level playing field or which leads to an abuse of a dominant position, in particular:

 

a)discriminatory practices in the context of relations with other telecommunication operators and with the general public;

b)agreements or concerted practices between telecommunications operators or associations of undertakings, irrespective of their form, which have the effect of distorting, restricting or impeding competition; and

c)all forms of cross-subsidisation or other practices which undermine competition or freedom of choice for users, such as unfair customer attraction.

 

Also, as indicated above, the Administrative Regulation no. 41/2004 establishes the regime of interconnection of public telecommunications networks, which shall be made in an environment of equal conditions of competition, ensuring (inter alia) the non-discrimination in the provision of interconnection.

 

Finally, the Administrative Regulation no. 41/2011 stipulates that the licence for the installation and operation of fixed public telecommunications networks may be suspended by order of the Chief Executive when there are acts that distort the conditions of competition or that lead to an abuse of a dominant position.

 

This article was first written for Global Legal Group.