On 20/06/2013,
you requested for the version in force on 20/06/2013
incorporating all amendments published on or before 20/06/2013.
The closest version currently available is that of 20/01/2012.
21. The principal Act is amended by inserting, immediately after section 69B, the following section:
69C.
—(1) The Minister may issue a written order (referred to in this section as the separation order) to any telecommunication licensee (referred to in this section as the relevant telecommunication licensee), if —
(a)
either of the following applies:
(i)
the relevant telecommunication licensee is licensed to operate a telecommunication system, or any installation or plant used for telecommunications, 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 telecommunication services in Singapore by an efficient competitor of the relevant telecommunication licensee;
(ii)
the relevant telecommunication licensee has the ability to exercise significant market power in any market for telecommunication services in Singapore, and both of the following apply:
(A)
the telecommunication services provided by the relevant telecommunication licensee in that market (referred to in this subsection as the relevant telecommunication services) are required by other telecommunication licensees for the provision of telecommunication services in Singapore on a competitive basis;
(B)
it is so costly or difficult to provide the relevant telecommunication services that a requirement to do so would create a significant barrier to the provision of telecommunication services in Singapore on a competitive basis by an efficient competitor of the relevant telecommunication licensee;
(b)
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 telecommunication licensee to achieve —
(i)
where paragraph (a)(i) applies, rapid and successful entry into the market for telecommunication services in Singapore; or
(ii)
where paragraph (a)(ii) applies, the provision of telecommunication services in Singapore on a competitive basis; and
(c)
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 shall have regard to whether the issue of the separation order is necessary or desirable for one or more of the following purposes:
(a)
to promote and maintain fair and efficient market conduct and effective competition between persons engaged in commercial activities connected with telecommunication technology in Singapore;
(b)
to promote the efficiency and international competitiveness of the telecommunication industry in Singapore;
(c)
to eliminate or reduce barriers to competition arising from the control of any telecommunication system, or the possession of significant market power, by the relevant telecommunication licensee;
(d)
to promote transparency, non-discrimination and equivalence of supply in relation to the provision of telecommunication services in Singapore.
(3) The separation order may —
(a)
direct the relevant telecommunication licensee to transfer to a separate entity or an independent entity either or both of the following:
(i)
the whole or any part of any business of the relevant telecommunication licensee that is conducted pursuant to a telecommunication licence granted under section 5;
(ii)
the whole or any part of any property of the relevant telecommunication licensee that is used by it to provide any telecommunication services, and any rights, obligations and liabilities relating to that property;
(b)
for the purposes of paragraph (a), direct the relevant telecommunication licensee —
(i)
to establish a separate entity; and
(ii)
to ensure that the separate entity applies for a licence under section 5; and
(c)
contain such other directions as the Minister considers appropriate, including (but not limited to) directions relating to all or any of the following matters:
(i)
the types of transactions, dealings, arrangements and relationships that the relevant telecommunication licensee may engage in, or is prohibited from engaging in, with the separate entity or independent entity;
(ii)
the measures to be implemented to ensure that the relevant telecommunication licensee will not obtain effective control over the independent entity;
(iii)
any future or contingent right or liability of the relevant telecommunication licensee;
(iv)
the conditions of the transfer directed under paragraph (a);
(v)
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 shall have regard to whether the directions are proportionate, taking into account —
(a)
the contestability of the relevant market for telecommunication services in Singapore; and
(b)
the effectiveness of the directions in eliminating or minimising any incentive or opportunity for the relevant telecommunication licensee to act in a manner that prevents, restricts or distorts competition in the relevant market for telecommunication services in Singapore.
(5) A licence granted under section 5 to a separate entity established by a relevant telecommunication licensee may include (without prejudice to the power to impose conditions conferred by that section) conditions requiring the separate entity —
(a)
to operate on a stand-alone basis;
(b)
to deal at arm’s length with the relevant telecommunication licensee or any of its associates;
(c)
to provide to other telecommunication licensees any service 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 telecommunication licensee or any of its associates; and
(d)
to do, or to refrain from doing, such things as are specified in the licence, or as are of a description specified in the licence.
(6) The separation order shall take effect, notwithstanding —
(a)
the provisions of any other written law or any rule of law; and
(b)
the provisions of the memorandum or articles of association, or other constitution, of the relevant telecommunication licensee.
(7) Notwithstanding 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 telecommunication licensee to a transferee —
(a)
that business or property shall be transferred to, and shall vest in, the transferee without other or further assurance, act or deed, and the separation order shall have effect according to its tenor and be binding on any person thereby affected;
(b)
every deed, bond, agreement or other arrangement subsisting immediately before that date which relates to that business or property, and to which the relevant telecommunication licensee is a party, shall continue in full force and effect, and shall be enforceable by or against the transferee, from that date, as if the transferee had been named therein or had been a party thereto instead of the relevant telecommunication licensee; and
(c)
any proceedings or cause of action, by or against the relevant telecommunication licensee, pending or existing immediately before that date and relating to that business or property shall, if continued, be enforceable by or against, the transferee from that date.
(8) Subject to subsection (11), the Minister may award compensation to the relevant telecommunication licensee for any damage caused to it by reason of its compliance with the separation order.
(9) For the purposes of subsection (8), the Minister shall, within 6 months after the making of the separation order, by notification in the Gazette, establish a scheme for determining the amount of any compensation payable to the relevant telecommunication licensee.
(10) A scheme established under subsection (9) may provide for —
(a)
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;
(b)
the assessment to be made by an independent valuer appointed by the Minister; and
(c)
the remuneration and expenses of the independent valuer.
(11) No compensation shall be awarded under subsection (8) if, when issuing the separation order, the Minister was satisfied that the relevant telecommunication licensee had engaged in conduct that prevents, restricts or distorts competition in any market for telecommunication services in Singapore, through —
(a)
its control of the telecommunication system, or the installation or plant used for telecommunications, referred to in subsection (1)(a)(i); or
(b)
the exercise of its market power referred to in subsection (1)(a)(ii).
(12) Any compensation awarded by the Minister under subsection (8) shall be paid out of the Consolidated Fund.
(13) Before issuing the separation order, the Minister shall, unless he decides that it is not practicable or desirable to do so, cause to be given to the relevant telecommunication licensee notice in writing of his intention to issue the separation order, specifying the date by which written representations may be made to the Minister with regard to the separation order.
(14) Upon receipt of any written representation, the Minister shall 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 telecommunication licensee and any person affected by the separation order shall comply with the separation order.
(17) Any person who contravenes subsection (16) shall be guilty of an offence and shall be liable on conviction —
(a)
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 thereof during which the offence continues after conviction;
(b)
in the case of an entity which is granted a licence under section 5, to a fine not exceeding the higher of the following amounts:
(i)
10% of the annual turnover of that part of its business in respect of which it is granted the licence, as ascertained from its latest audited accounts; or
(ii)
$1 million,
and, in the case of a continuing offence, to a further fine not exceeding $100,000 for every day or part thereof during which the offence continues after conviction; or
(c)
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 thereof during which the offence continues after conviction.
(18) Section 32A(4), (5)(a), (6), (7) and (8) shall apply with the necessary modifications to this section as they apply to Part VA.
(19) In this section —
“30% controller”, in relation to a telecommunication licensee, means a person who, alone or together with his associates —
(a)
holds 30% or more of the total number of voting shares in the telecommunication licensee; or
(b)
is in a position to control 30% or more of the voting power in the telecommunication licensee;
“broadcasting licensee” has the same meaning as in section 2(1) of the Broadcasting Act (Cap. 28), but does not include a class licensee as defined in section 2(1) of that Act;
“business” includes any business affairs, property, right, obligation or liability;
“effective control”, in relation to a telecommunication licensee or an independent entity, means the ability to cause the telecommunication licensee or independent entity (as the case may be) to take, or to refrain from taking, a major decision regarding the management or operations of the telecommunication licensee or independent entity (as the case may be), and includes such control as may be exercised over the telecommunication licensee or independent entity (as the case may be) by a 30% controller of the telecommunication licensee or independent entity (as the case may be);
“independent entity” means an entity that —
(a)
whether alone or together with its associates, does not have effective control over any telecommunication licensee or broadcasting licensee; and
(b)
is not under the effective control of —
(i)
any telecommunication licensee, whether alone or with its associates; or
(ii)
any broadcasting licensee, whether alone or with its associates; or
(c)
is not under the effective control of any other entity which, whether alone or together with its associates, has effective control over any telecommunication licensee or broadcasting licensee;
“property” means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and includes —
(a)
any property, right or power of any description; and
(b)
in relation to a telecommunication licensee, the telecommunication licensee’s telecommunication system and installation or plant used for telecommunications;
“separate entity”, in relation to a telecommunication licensee, means an entity which is a separate legal entity from the telecommunication licensee, and includes any such entity the equity interests of which are wholly owned by the telecommunication licensee;
“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;
“voting share” has the same meaning as in section 4(1) of the Companies Act (Cap. 50).”.