Cap. 106 sub. leg. AA

Telecommunications (Level of Spectrum Utilization Fees) (Second Generation Mobile Services) Regulation(Cap. 106, section 32I)(Enacting provision omitted—E.R. 2 of 2012) [3 February 2005](Format changes—E.R. 2 of 2012) 1. (Omitted as spent—E.R. 2 of 2012) 2. Application (1A) This Regulation only applies in relation to—(a) the use of the spectrum that falls within the frequency bands 890–915 MHz and 935–960 MHz set out in Part 2 of the specified Schedule on or before 11 January 2021;(b) the use of the spectrum that falls within the frequency bands 1710.5–1780.1 MHz and 1805.5–1875.1 MHz set out in Part 2 of the specified Schedule on or before 29 September 2021; and(c) the use of the spectrum that falls within the frequency bands set out in Part 2A of the specified Schedule on or before 29 September 2021. (L.N. 104 of 2018)(1) The amount of the spectrum utilization fees to be paid by the users of the spectrum referred to in subsection (1A)(a) and (b) is determined in accordance with section 4. (L.N. 21 of 2009; L.N. 104 of 2018)(2) Subject to section 4A, the spectrum utilization fee payable by the user of the spectrum referred to in subsection (1A)(c) consists of— (L.N. 104 of 2018)(a) a fixed fee determined in accordance with the Telecommunications (Determining Spectrum Utilization Fees by Auction) Regulation (Cap. 106 sub. leg. AC); and(b) an annual fee determined in accordance with section 4B. (L.N. 21 of 2009)(3) In this section—specified Schedule (指明附表) means the Schedule to the Telecommunications (Designation of Frequency Bands subject to Payment of Spectrum Utilization Fee) Order (Cap. 106 sub. leg. Y). (L.N. 104 of 2018) 3. Interpretation In this Regulation—(a) mobile carrier licence (移動傳送者牌照) means a mobile carrier licence as defined in section 2 of the Telecommunications (Carrier Licences) Regulation (Cap. 106 sub. leg. V);(b) network turnover (網絡營業額), in relation to calculating a spectrum utilization fee, means the revenue arising from or attributable to the provision of any telecommunications services over any telecommunications network using the frequency bands to which that fee relates; (c) relevant mobile carrier licence (有關的移動傳送者牌照) means a mobile carrier licence which—(i) is granted after the commencement of this Regulation; and(ii) entitles its holder to use the spectrum referred to in section 2; (L.N. 15 of 2005)(d) relevant unified carrier licence (有關的綜合傳送者牌照) means a unified carrier licence as defined in section 2 of the Telecommunications (Carrier Licences) Regulation (Cap. 106 sub. leg. V) which entitles its holder to use the spectrum referred to in section 2; (L.N. 133 of 2008; L.N. 21 of 2009)(e) base station (基地電台) means a transmitting and receiving station built on land for the provision of mobile telecommunications services. (L.N. 21 of 2009)(L.N. 15 of 2005; L.N. 133 of 2008) 4. Spectrum utilization fee referred to in section 2(1) (L.N. 21 of 2009)(1) The spectrum utilization fees referred to in section 2(1) shall be— (L.N. 21 of 2009)(a) for each of the first 5 years of the period of validity of the relevant mobile carrier licence or relevant unified carrier licence (as the case may be), $145 for every 1 kHz or part thereof of the spectrum assigned for use by the licensee; (L.N. 104 of 2018)(b) for each of the 6th to the 15th years of the period of validity of the relevant mobile carrier licence or relevant unified carrier licence (as the case may be)— (L.N. 133 of 2008; L.N. 104 of 2018)(i) 5% of the network turnover in the year concerned; or(ii) $1,450 for every 1 kHz or part thereof of the spectrum assigned for use by the licensee, whichever is the higher for the year concerned; and (L.N. 104 of 2018)(c) for the remainder of the period of validity of the relevant mobile carrier licence or relevant unified carrier licence (as the case may be), an amount equal to a fraction of the spectrum utilization fee payable for the 15th year of the period representing the proportion that the number of days in the remainder bears to 365. (L.N. 104 of 2018)(2) For the purposes of subsection (1), the spectrum assigned for use by the licensee shall be—(a) in respect of the first year of the period of validity of the relevant mobile carrier licence or relevant unified carrier licence (as the case may be), the spectrum assigned for use by the licensee on the issue of the licence; and(b) in respect of each subsequent year of the period of validity of the relevant mobile carrier licence or relevant unified carrier licence (as the case may be), the spectrum assigned for use by the licensee on each anniversary of the issue of the licence. (3) For the purposes of subsection (1), if the relevant mobile carrier licence is, before the expiry of its period of validity, surrendered to the Authority in return for a relevant unified carrier licence which entitles the licensee to use the same spectrum for the provision of service as the relevant mobile carrier licence, then the period of validity of the relevant unified carrier licence in relation to that spectrum shall be calculated as from the date of the first issue of the relevant mobile carrier licence in relation to that spectrum to the licensee, and the reference to “the issue of the licence” in subsection (2)(a) and (b) shall be construed as a reference to the first issue of the relevant mobile carrier licence accordingly. (L.N. 133 of 2008)(L.N. 133 of 2008) 4A. When spectrum utilization fee referred to in section 2(2) is not payable (1) No spectrum utilization fee is payable for the use of a spectrum referred to in section 2(2) if the user of the spectrum is authorized by the Authority to use the spectrum through a base station located in a designated area for the sole purpose of providing mobile telecommunications services within the designated area.(2) The Authority may specify an area to be a designated area for the purposes of subsection (1).(3) The Authority must publish the details of the specification of the designated area in the Gazette.(L.N. 21 of 2009) 4B. Annual fee referred to in section 2(2)(b) (1) The annual fee referred to in section 2(2)(b) shall be determined as follows—(a) for each period of 12 months beginning with 30 September from 30 September 2009 to 29 September 2011, $145 for every 1 kHz or part of every 1 kHz of the spectrum assigned for use by the holder of a relevant mobile carrier licence or relevant unified carrier licence (as the case may be); and(b) for each period of 12 months beginning with 30 September from 30 September 2011 to 29 September 2021—(i) 5% of the network turnover in the period of 12 months concerned; or(ii) $1,450 for every 1 kHz or part of every 1 kHz of the spectrum assigned for use by the holder of a relevant mobile carrier licence or relevant unified carrier licence (as the case may be), whichever is the higher for the period of 12 months concerned.(2) For the purposes of subsection (1), the spectrum assigned for use by the holder of a relevant mobile carrier licence or relevant unified carrier licence (as the case may be) shall be, in respect of each period of 12 months beginning with 30 September, the spectrum assigned for use by the holder on 30 September of the period.(L.N. 21 of 2009) 5. Action that may be taken by Authority if licensee fails to keep proper accounts for purposes of determining spectrum utilization fees Where the determination of a spectrum utilization fee relates, whether in whole or in part, to the accounts of a licensee and the accounts have not, in the opinion of the Authority, been kept in accordance with—(a) the conditions to which the licence is subject; or(b) any accounting practices specified under section 7H of the Ordinance and applicable to the licensee,then—(c) the Authority may—(i) treat the accounts in such manner as it considers necessary to bring them into conformity with those conditions or accounting practices, as the case may be; and (17 of 2011 s. 28)(ii) assess the network turnover in relation to the licensee on the basis of the accounts as so treated; and(d) the accounts as so treated and the network turnover as so assessed shall be used for the purposes of determining that fee, and the other provisions of this Regulation shall be construed accordingly.