A judge asked yesterday why he should accede to TVB's request to intervene in ongoing government deliberations on the issuance of new licences for free-television stations.
Mr Justice Thomas Au Hing-cheung, sitting in the Court of First Instance, was hearing TVB's arguments in seeking leave to apply for a judicial review over the potential licensing of new entrants to the market.
In court filings in January, TVB said the Communications Authority made an "unlawful" recommendation in July when it supported licence applications from three companies.
The television station said reports commissioned before and after the recommendation were replete with errors. It asked the court to stop the Chief Executive in Council, made up of the chief executive and Executive Council, from granting licences to City Telecom-owned Hong Kong Television Network, i-Cable Communications subsidiary Fantastic Television, and PCCW unit HK Television Entertainment Company.
Au asked Gerard McCoy SC, representing TVB, why he should step in if the station still had a chance to submit views to the Chief Executive in Council before it arrived at a decision.
"Why should the court intervene when you can make all your representations to the Chief Executive in Council?" he said. McCoy said TVB had lost a chance to secure a recommendation with better terms. "We are no longer on an even playing field."
TVB received a heavily edited summary of the recommendation only eight months after the authority issued it, he said. The station did not have the necessary access to consultants' reports that led to the recommendation, he said.
Those reports, he said, were "absurdly inaccurate". The writers, for example, claimed the advertising expenditure of free-television stations from 2005 to 2009 was HK$36.2 billion when, according to TVB, it should be HK$12 billion.
He said the authority's consultation had been a "farce" and a "charade" that failed to meet basic requirements.
TVB has committed HK$6 billion in investment from now until 2015. "What's at stake is massive," McCoy said, as any change in the market could affect TVB, a key stakeholder.
He suggested that the judge direct the authority to hear TVB's representations after the station received access to the documents, and then to reconsider its recommendation.
The authority countered that proposal in court. The Chief Executive in Council had yet to make a decision and it was hence too early to conduct a judicial review, Teresa Cheng SC said.
"The entire process has not yet reached its fruits, its decision. It would be fruitless to start reviewing matters now."
Eva Sit, for the Chief Executive in Council, said the process was "far from complete". "Even if there is a defect at an early stage in the process, that does not mean there is prejudice overall."
TVB applied to the courts after ATV failed in March last year to obtain court permission to lodge a judicial challenge.
The judge will give his decision at a later date.