Drew & Napier - Telecommunications, Media & Technology (TMT)

Key Areas of Expertise

Telecoms and Technology
Merger Clearance
Media and Entertainment
Regulatory Advice and Enforcement
Legislative Drafting, Enforcement and Policy Advice
Data Protection
TMT Dispute Resolution

INTRODUCTION TO THE TMT PRACTICE GROUP

The leading TMT practice in Singapore – with unparalleled transactional, licensing and regulatory experience in the TMT and postal sectors in Singapore – Drew & Napier is consistently ranked in the top tier of TMT practices in Singapore by international publications.

The strength of our team, headed by director Lim Chong Kin, lies in a carefully selected mix of more than 10 lawyers and paralegals with extensive experience in infocomms, data protection, and sector-specific and general competition law. The team is supported by 2 in-house competition and regulatory economists led by Ng Ee Kia (Head, Competition & Regulatory Economics), who was previously Director of Economics at the Competition Commission of Singapore (CCS).

A Trailblazer in the TMT Scene

In 1999, Chong Kin was the lead Singapore counsel appointed by the Info-communications Development Authority (IDA) to draft the Telecom Competition Code (TCC), the first industry-wide competition legislation in Singapore and precursor to the country’s general competition regime. In 2004 and again in 2009-10, Chong Kin was reappointed to revise the TCC as part of its first and second triennial review exercises.
In the media scene, Chong Kin was appointed as lead Singapore counsel by the Media Development Authority (MDA) in drafting the Media Market Conduct Code in 2003. Today, we continue to advise the MDA on enforcement, licensing, regulatory and market access issues, in particular the implementation of novel regulatory measures relating to cross-carriage of content by pay-TV operators.
Chong Kin also led the drafting of the Postal Competition Code in 2007 to facilitate liberalisation of the postal industry in Singapore.

RECENT NOTABLE MATTERS

Data centre deployment in Singapore – assisting two of the world’s foremost Internet and computing companies in setting up data centers to meet Asia Pacific operational requirements.

Second triennial review of the Telecom Competition Code and associated review of the dominant licensee’s Reference Interconnection Offer – retained by IDA to assist in its triennial review.

Sri Lanka Policy and Regulatory Advisory Project (for installation of
a national Next-Gen Broadband Network) – legal and regulatory counsel to the Telecoms Regulatory Commission of Sri Lanka.

Revisions to Media Market Conduct Code arising from Drew & Napier’s study on competition issues in the Singapore pay-TV market – assisted MDA in implementation of a landmark cross-carriage measure.

Licensing of a novel audiovisual content distribution service arising from telecom and media convergence in Singapore – advised a leading electronic and entertainment giant on media licensing requirements.

Data Protection and Compliance – reviewing operations and advising telcos and Internet companies (including a leading social networking site) on Singapore data protection requirements, under the Telecom Competition Code and generic consumer protection laws.

A Wealth of First-Hand Regulatory Experience

Recently, we advised IDA on the enforcement and implementation of licensees’ obligations, for example in respect of licensees’ ability to roll-out fibre-to-the-home networks.
We have also advised IDA on all competition and regulatory issues in three groundbreaking national infrastructure initiatives – the establishment of the Next Generation Nationwide Broadband Network (NGNBN), Singapore Internet Exchange, and the National Authentication Framework.
We have also advised Singapore regulators on their international obligations and interactions with regulators of other countries.

Range of Clients

Our broad range of clients – from industry giants and technology start-ups to regulators and authorities – allows us to offer unique insights on the TMT industry from all perspectives.

We are routinely consulted on commercial, licensing and regulatory matters by global carriers and regional telecommunication service providers (e.g. AT&T, Pacnet, Sprint, FLAG and Reliance) and international broadcasters (e.g. Discovery, ESPN, MGM and Sony).
We regularly act for technology leaders and start-ups in information technology, data privacy and protection and commercial matters (e.g. Research-in-Motion/Blackberry).
We are often called upon to provide high-level advisory and consultancy services to various regulators, including IDA, MDA, CCS and most recently, the telecoms regulator of Sri Lanka.
In 2011, for the 13th consecutive year, we have been retained as IDA’s external legal and regulatory advisors, a record which speaks volumes for our ability to deliver effective, timely and commercially-relevant solutions.

We are also experienced in a wide range of technology law issues.

Clients who trust us with technology matters include MNCs, public listed companies, statutory boards and some of the most established names in Singapore.
We have advised and acted for market participants in drafting, reviewing and/or negotiating various technology contracts relating to consultancy and project management, outsourcing, software integration, bespoke hardware and software, hardware/software maintenance etc.

EXPERTISE

Our TMT industry client base spans the entire spectrum in the TMT sector, ranging from telecommunication carriers, service providers, network operators, hardware manufacturers, equipment suppliers, consultants, specialist contractors, software houses, leading global broadcasters and content providers, and international law firms.

Telecoms and Technology [back to top]

A sampling of our recent notable telecom and technology industry experience includes:

Assisting two of the world’s largest integrated Internet and computing companies, under separate instructions, in their respective plans to roll-out data centres in Singapore. The purpose of these data centres is to host and support soaring data traffic volumes for the Asia Pacific region – including East Asia. As a full-service law firm, our assistance to these two Fortune 500 firms include, without limitation: liaising with the national telecoms regulator, IDA, on telecoms licensing requirements (including possible facilities-based operations and services-based operations); assisting on all legal aspects relating to conveyance of land, site selection, negotiations with the land authorities (including Jurong Town Corporation); advising on energy and power (including green energy) and construction issues; and legal documentation support (e.g. preparing invitations to tender and drafting service agreements). All assistance is centrally coordinated through the Drew & Napier TMT Practice Group, which also advises the companies on structuring the shareholding of the local operating entities.
Advised a government-linked entity on its tender for the turnkey development of a high performance supercomputing facility and data centre. Work tasks included drafting and reviewing tender documents for the client. The complex technical specifications and high degree of customisation required the working team to, amongst other things, understand and develop innovative solutions to protect client’s interests (including protection of ownership rights, and safeguarding against failure or inadequacy of design or construction) and preserve intellectual property rights.
Advised a major Internet services provider and search portal in respect of its legal needs for the Asia Pacific region. This included instructing and directing counsel in various countries, drafting template service and distributor agreements, adapting end-user software licensing arrangements and drafting marketing agent agreements.
Successfully assisted a regional submarine cable operator in obtaining IDA licensing for new cable deployment out of Singapore, including advising on backhaul access and setting up cable landing facility.
Advised and assisted a regional submarine cable operator in its preparation of a facilities sharing and access agreement relating to a cable-landing station in Hong Kong.
Successfully assisted in negotiating an amicable settlement package on behalf of a pan-Asian submarine cable network operator in its dispute with a dominant telecom operator over a US$200m convertible loan facility.
Advised on a Master Licence Agreement between a key Singapore print media company and a foreign online advertising solutions provider, in relation to targeted video commercials on a newly-launched web-based platform that allows Internet users to view rich media and video commercials online without buffering time.
Advised a major Singapore-based insurance company in drafting software customisation and licensing agreements with its IT-solutions vendors.
Advised a leading Asian stock exchange on a software development joint venture.
Assisting the world’s largest software provider on the Singapore legal and regulatory requirements in various cutting-edge developmental products, involving convergence of conventional software platforms with IP telephony networks and state-of-the-art technology. An example of such engagements is a project on the integration of the client’s instant messaging software with telecommunication abilities. Most recently, we assisted the client in successfully applying for a Services-Based Operator (SBO) licence from the IDA.
Advised a leading gaming company on the introduction of a revolutionary gaming console. Tasks included drafting, reviewing and negotiating numerous regulatory requirements (including multiple market regulators) for the roll-out.

Merger Clearance [back to top]

Pioneers in merger-related work – our Lim Chong Kin and Ng Ee Kia have played key roles in formulating and implementing almost every merger framework in Singapore to date. As counsel to IDA and MDA, Chong Kin advised on the drafting of the Telecom Competition Code, Media Market Conduct Code and Postal Competition Code. Ee Kia, as Director (Economics) at the CCS, led the team that drafted the CCS Guidelines on the Substantive Assessment of Mergers and the CCS Guidelines on Merger Procedures.

Our in-depth regulatory experience and familiarity with the ins-and-outs of the competition authorities translate into a wealth of practical knowledge for industry clients to tap on. We advise companies on the competition law aspects of their proposed mergers and acquisitions, and prepare and lodge merger filings on behalf of our clients.

We successfully obtained merger clearances for four major telecommunications consolidations under the Telecom Competition Code, and filed the first merger notification under the general Competition Act. Some of our telecoms-related merger projects include:

Public takeover of Pacific Internet, a regional ISP-services giant, by a private equity fund group: secured unconditional merger control approval from the telecoms regulator.
Consolidation of C2C and Asia Netcom: obtained merger control approval from the telecoms regulator.
Merger of Reliance and FLAG Telecom: obtained Singapore merger control approval from the telecoms regulator.
Merger of SBC and AT&T: obtained Singapore merger control approval from the telecoms regulator.
Acted for the telecommunications regulator in conducting a competition merger review involving the consolidation of StarHub and Singapore Cable Vision under the Telecom Competition Code.
Advised a leading international gas company on the competition law aspects of its proposed acquisitions in Singapore.

Media and Entertainment [back to top]

Our notable experience in media and entertainment-related matters includes:

Leading a consortium of consultants to conduct a study on the competition issues in convergent media and telecommunications markets. Commissioned jointly by the MDA, CCS and IDA, the study involved, inter alia, an assessment of the state of the pay-TV market in Singapore, in particular the effects of exclusive carriage agreements, and the bundling of media and telecoms services, on these convergent markets.
Appointed by MDA to advise on and draft the Media Market Conduct Code to regulate the media and print industry in Singapore.
Advising MDA on market access and licensing issues, including the licensing framework for the introduction of new media services, such as niche subscription television services including video-on-demand and IPTV services; and the migration of services between licensing regimes.
Acting for leading media content providers (including an international sports broadcast network) in the following media and entertainment-related agreements:

Broadcast licence agreements – advised client on conferring rights to a media company to broadcast, in a designated territory, an international sporting event via various forms of transmissions or distribution channels. Also advised client on reviewing, drafting and negotiating regional broadcast rights for le Tour de France.
Preparation of Host Venue Agreement for staging sporting event in KL, Malaysia.
Acquisition of licensing rights of a famous musician’s characteristics for use in an international sporting event.
Service agreement – assisted clients in drafting service provider agreements for the construction and set-up of props and various tournament equipment for both indoor and outdoor venues.
Mobile service agreements – advised and assisted client in reviewing and drafting of the collaborative arrangements made with various international football clubs for the rights to exploit mobile content services in the nominated territory of these football clubs.
Manufacturing and Content Licence Agreement – advised & assisted client in reviewing of a licensing agreement with an established PRC handset manufacturer to manufacture mobile telecommunication handsets and accessories under our client’s brand name.

Advising a leading international media content provider on compliance with local gaming laws in respect of a proposed regional poker (and other card games) tournament.
Advising the largest worldwide broadcasting corporation (in terms of audience numbers) and the leading music-television channel on its regulatory and licensing affairs in Singapore.

Regulatory Advice and Enforcement [back to top]

We advise and represent national and sectoral regulators on enforcement actions for breach of competition laws and regulations. Some of the projects we have undertaken include:

Advising IDA and MDA in respect of numerous disputes and complaints under the Telecommunications Act, Telecom Competition Code and the Broadcasting Act.
Advising IDA on enforcement action for contravention of the anti-competitive provisions in the Telecom Competition Code (including abuse of dominance and anti-competitive arrangements).
Acting for IDA in the dispute between SingTel and Singapore Cable Vision over facility access issues.

Legislative Drafting, Enforcement and Policy Advice [back to top]

No other practice comes close to matching our experience in drafting of TMT legislation, advising on enforcement and policy formulation. Our projects include

Lead Singapore counsel in advising on the liberalisation of the Singapore postal industry, including drafting of the Postal Competition Code.
Lead Singapore counsel for drafting of the Telecom Competition Code, consolidation framework and other Code guidelines and the two triennial reviews (2005 and 2010).
Drafting of the framework for reviewing the competitive effects of mergers and acquisitions in the telecoms industry.
Drafting of Singapore’s first interconnection, market access and infrastructure sharing framework to regulate competition in the telecoms industry.
Drafting of the Media Market Conduct Code 2003 to introduce competition regulation to the media and print industry.
Currently advising IDA on the implementation of the NGNBN, including advising on the conceptualisation and evaluation of primary competition and regulatory issues to ensure an open market access infrastructure framework. In particular, our advice is focused on reviewing and drafting the structural and operational separation requirements in IDA’s request for proposal to operators to design, build and operate the NGNBN infrastructure, and, drafting Singapore’s interconnection, market access and infrastructure sharing framework for the NGNBN.
Currently advising IDA on competition and regulatory issues concerning the groundbreaking National Authentication Framework project.
Advising IDA on licence obligations of FBO Licensees and subsequent enforcement action for non-compliance.

Data Protection and Compliance Audits [back to top]

We regularly advise and assist MNC clients on data protection concerns in respect of their Singapore operations. Our MNC clients include telco operators and Internet companies (ranging from the world’s leading social networking site to mobile device manufacturers to software developers (SAP and Microsoft)). Our work for clients includes:

Adapting global policies for data privacy and consumer protection for clients’ Singapore operations and offices.
Wide-ranging advice on the existing Singapore data protection regime.
Advising on ad-hoc queries relating to potential or actual privacy breaches and the necessary disclosure requirements and remedial actions in Singapore.
Advising on data protection concerns relating to the introduction of novel telecommunication services in the Singapore market.

We are also regularly engaged by MNCs as well as local clients across industries (including airlines, manufacturing, entertainment, and fast-moving consumer goods), telcos and Internet companies to conduct regulatory risk audits of their business operations to highlight potential areas of non-compliance and to assist in the rectification of any problematic agreements and conduct. In the past six years, we have gained considerable first-hand expertise in compliance audits, in particular, to ensure compliance with newly-introduced legal and regulatory obligations, for instance, competition law in Singapore. Our team of lawyers is also experienced in conducting compliance audits of business practices, existing legal agreements, and informal business arrangements. The team recently assisted our MNC clients with regulatory audits across several jurisdictions, including Singapore, Malaysia, Indonesia, Thailand, India and the Philippines (in respect of intellectual property, competition and anti-corruption laws).

In developing compliance programmes for our clients, we further value-add by creating manageable, staff-level compliance manuals and training programmes to ensure that our clients are in a position to operationalise their compliance procedures on a day-to-day basis, and will only need to rely on external counsel under exceptional instances.

TMT Dispute Resolution [back to top]

We have a dynamic and responsive team to handle all types of TMT and technology-related disputes. With the impact of IT on business and commerce, our TMT lawyers work closely with other Drew & Napier LLC specialist teams to strengthen and protect our clients’ interests in this rapidly evolving area of law.

For further information on our TMT Practice Group, please contact:

Lim Chong Kin (Head, TMT Practice Group)

Dispute Resolution:
Cavinder Bull, SC
Adrian Tan

Competition Economics:
Ng Ee Kia, Joy