Thai regulator lacks unity

07 Oct 2011

There are a number of fundamental flaws in the structure of Thailand’s telecommunications regulator, the National Broadcasting and Telecommunications Commission that will soon rear its ugly head.

The regulator is supposed to be a converged regulator, taking the old National Broadcasting Commission and the National Communications Commission which used to have to agree on spectrum allocation and putting them under the same roof. Unfortunately, that is all the new Frequency Allocation Act did - put them under the same roof. The commission is still divided into a broadcast sector and a telecoms sector and only the board is converged, if it can be called a board, but more on that later.

If one arm polices broadcast content and the other communications networks, what happens when video is sent over data networks? Or when LTE networks are vying for the same spectrum used for UHF broadcasting?

One case in point was the case of the popular console game Grand Theft Auto IV. Launched in 2008, GTA IV made the headlines in Thailand for the level of violence, sexual deviance and depravity that comes with a typical modern virtual game world and the damage it was doing to youth. It did not take long for the authorities to ban it, seizing all copies and threaten to prosecute anyone importing the discs.

Only, the authority that did so was not the telecoms regulator, not the ICT Ministry, but rather it was the Ministry of Culture.

The ideal converged regulator would be divided horizontally with a content layer and an infrastructure layer. One arm should make sure that the roads are built to get data, voice, TV, radio - everything to as many people as possible. The other should oversee the content itself, otherwise one ends up with a situation where some things legal on IP TV are not on free to air TV, and with satellite TV being somewhere in the middle, which just happens to be the status quo in Thailand right now. Then there is censorship of movies which has its own set of rules, such as it being illegal to show a government official being corrupt on the silver screen.

GTA IV was banned but the regulator did nothing as it was not broadcasting and not telecom, never mind the fact that the radio station in Liberty City (the GTA dystopian world) would stream to your real world PC via Internet radio widgets.

It was a mess, and an ad-hoc one at that. The follow-up, the Ballad of Gay Tony, was not even noticed. Everyone had got bored after the initial hoopla was over.

The other problem with the NBTC relates to selection of commissioners. Paranoia about conflict of interest and corruption has led to the rule that anyone with industry interests is excluded, but it is taken to extremes, which means that anyone who actually knows how the industry works is implicitly banned and it is left with pencil pushing bureaucrats, retired military and activists for the most part. Indeed, there is only one commissioner (out of eleven) with a track record in telecommunications, thanks to his hiatus, but his views on the industry structure (most notably only state-owned enterprises are to operate a core network on national security grounds) is whimsical, to say the least.

The other problem is that the regulator lacks a proper board structure in line with good governance. There are no non-executive board members and each board member has his own fiefdom. It’s predecessor NTC had the same problem, as was evident in how one commissioner, Natee Sukonrat was rushing around the globe trying to entice foreign bidders to the 3G bid while his colleague Sudharma Yoonaidharma was busy drafting foreign dominance laws that effectively excluded foreign bidders from competing in the 3G bid.

As all eleven commissioners have a job to do, the closest thing they have to a non-executive board is the Senate, but they only step in when the NBTC oversteps its authority and breaks the law, rather than provide direction and guidance.

But perhaps none of this will matter. Last Tuesday, the Office of the Comptroller General asked the Prime Minister to delay the the NBTC appointment, citing that it was unconstitutional on two grounds. First, the National Human Rights Commission was not represented in the selection as was statutory; and second, that the selection process had no formal checks to prevent influence from telecommunications and broadcasting businesses. In other words, they wanted people even further removed from the industry to prevent conflict of interest. Quite why the objection came from the Comptroller General and not the Attorney General or Council of State (the government legal advisory board) is odd and perhaps politically motivated.

This is in addition to a Department of Special Investigation (Ministry of Justice) probe into the selection process and promises by the ruling political party to bring back the 1997 constitution (which calls for two separate regulators).

Thailand still is on a concession system. 3G licensing has not happened. Concession conversation has not happened. The state telcos, given free spectrum and a few years’ head start are still bungling their way to 3G in what has so far been a commercial disaster. Nobody sees the problem, nobody wants to take responsibility or ownership of the big picture. The people of Thailand deserve better.

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