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NBTC act is a premature, mad dash for spectrum

The rushed, incoherent and incomplete nature of Thailand’s new frequency law can only be explained as a mad rush to grab control of spectrum before a new constitution with checks and balances is enacted.

Last week, ICT Minister Group Captain Pornchai Rujiprapa announced that a new draft frequency law had been approved by the cabinet and is now on its way to the legislature to pass into law. The new law severely curtails the National Broadcasting and Telecommunications Commission’s powers and budget independence, putting it under the Digital Economy Commission (chaired by Prime Minister General Prayuth Chanocha), putting its budget under the scrutiny of parliament and, perhaps most importantly, leaving it only in charge of commercial spectrum.

The Digital Economy Commission can declare spectrum for national security and allocate it directly without going through the regulator.

This key turns back the deregulation clock by over two decades. It was decided by the reform council in the aftermath of the 1992 Bloody May massacre that media and spectrum control should be removed from the executive branch and given to an independent regulator to prevent the abuse of power that perpetrated the run-up to the event and provide adequate checks and balances.

Without free (liberal) spectrum, there can be no free speech. As long as a politician has the final say in allocation of spectrum, it follows that ultimately the use and control of that spectrum will be politicised. Just how long can a company play the holier-than-thou free speech card if their 2G concession is up for renewal under the diktat of the junta? Yes, Sigve Brekke, I am talking about Dtac.

But the announcement from the ICT Minister was conspicuous in the absence of detail on the broadcasting side of the equation, only that the broadcasting and telecoms boards would be merged.

I talked to NBTC commissioner Supinya Klangnarong, who is on the broadcasting side, and she said that the draft act took her by surprise and that, one day after it was approved, nobody in the NBTC seemed to have a copy of the actual draft. It was a law that tore up the broadcasting regulator, yet the regulator had not been consulted at all.

She also pointed out that the bill was just one of a number of versions out there, though it is the only one to have been granted cabinet approval. Another frequency act was being drafted by the National Reform Council. She also pointed out that with a new constitution being drafted, any bill passed today would probably be short lived as a new one would then have to be drafted to fit the new constitution anyway.

Supinya, blunt as ever, said the bill was simply a grab at telecom spectrum control by the junta without any concerns about the repercussions on media freedom that would follow.

But what is it that is at stake? There is the entire 900-MHz band and at least 25 MHz on the 1800-MHz band that is up for auction this year.

ICT Minister Pornchai has sided with state telco TOT, concession holder of 900-MHz 2G operator AIS, that TOT should “own” the 900-MHz band. The regulator has written to the junta, the National Council for Peace and Order, for guidance, to prevent anyone from filing a lawsuit later.

In other words, during these uncertain times, forget laws and courts, only the opinion of the junta matters. Which, given that there is no constitution and an NBTC that will probably carry out the auction under a new set of laws anyway, is probably the only certain thing left in Thailand now.

Looking further afield, there is 2.3-GHz and 2.5-GHz, both prime LTE bands. 2.3 is mostly used by state telco TOT. 2.5-2.6 is for the most part used by True, this time TrueVisions via an MCOT (Mass Communications Organisation of Thailand) concession, except for the bottom 6 MHz and top 12 MHz slices. I’ve tried asking if standard FDD equipment could work in standard FDD bands but with non-standard FDD pairing and most equipment makes have said, “probably,” without looking quite sure.

All or part of that, plus CAT’s claim on 1800 could be deemed important to national security and thus be allocated directly by the Digital Economy Commission without going through the regulator.

National security does not mean for the security services. It only means that normal checks and balances do not apply. In the case of the Shin Satellite concession, they have a monopoly because of national security even though the company is now Singaporean and though two MICT permanent secretaries have been indicted and quite possibly face jail time because of the contract amendments.

On the other hand, without the law, refarming of spectrum could be stuck in the courts forever like what happened for 2100 3G which was supposed to happen next October for the better part of a decade. This way the junta effectively is saying to the operators, “play nice and do not sue anyone or else we will take it away from you.”

Which might not be such a bad thing in that light.