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But in taking that decision the TA must be fair to both sides. It is no part of his duties to reinforce or extend HKTT's exclusive rights. There is no presumption in favour of exclusive rights. On the contrary, the prima facie position is that anyone may participate in the telecommunications industry, if licensed to do so. If HKTI can persuade the TA that its rights are being infringed, then he cannot grant a licence. But HKTI cannot use the TA's licensing function as a means of extending its exclusive rights beyond the strict terms of its licence, in particular the First Schedule to that licence, once properly construed. As HKTI itself submits, "determination of whether the provision of callback services in Hong Kong is permissible is a question of law, requiring interpretation of the HKTI Licence and the Telecommunication Ordinance."
TA's CONSIDERATION
In order properly to construe the HKTI licence it is important to focus upon two features:
the nature of HKTI's function as a carrier of external services (external carrier);
the history of the development of HKTI's exclusivities.
HKTI's Role. An analysis of HKTT's role as an external carrier requires a consideration of its functions in relation to the local network (the Public Switched Telephone Network (PSTN) in Hong Kong). HKTI is an intermediate carrier, taking part in a long chain of telecommunications which starts at a customer's premises in Hong Kong and ending at another destination outside Hong Kong. Many operators participate in the processes necessary to pass messages and signals down that chain of telecommunications, wherever the process starts, whether overseas or locally. Their participation does not alter the part played by HKTI in the process. To define HKTI's role it is important to emphasise the nature of the local network and the functions of those who participate in that local network.
There are many methods of access to the chain of communication. The chain involves a complex series of interconnections. HKTI's obligation is to ensure connection with the local network, specifically that of the Hong Kong Telephone Company (HKTC) which has separate telephonic exclusive rights until 30 June 1995 by virtue of the Telephone Ordinance and the mobile carriers separately licensed under the the Telecommunication Ordinance. Upon issue of licences under Telecommunication Ordinance to new Fixed Telecommunication Network Services (FTNS) operators, they too will form part of the local network. By virtue of its licence, HKTI is required to provide connection with the local network in accordance with conditions specified in the licence.