Thailand gets a regulator, at long last

07 Sep 2011

With the final selection of the members of Thailand’s broadcasting and telecommunications regulator done and dusted, the sun might be setting on the wild lawless west that is the Thai telecommunications sector, but a few hurdles remain before they can start bringing order to chaos.

The long and winding road was set in motion with the enactment of the 2007 constitution which called for first a new Frequency Allocation Act within 180 days (not that the deadline was met), and the Frequency Allocation Act set the Senate the task of selecting eleven commissioners to the National Broadcasting and Telecommunications Commission within a further 180 days after the Act becomes law.

Thailand first experimented with the idea of an independent regulator with the 1997 constitution. Its Frequency Allocation Act called for two regulators, one for telecommunications and the other for broadcasting, and the two had to agree on matters of frequency allocation.

However, because there were no penalties for delay in the 1997 model, the senate managed to fail miserably at setting up an broadcasting regulator. Indeed, more than a decade passed and they still managed to fail to get the broadcasting regulator up and running, their last attempt failed in September 2006 because of a technicality. The Senate sub-committee had failed to replace a disqualified potential commissioner and thus the final shortlist was incomplete, making the entire selection process illegal.

Eager not to take another decade to get a new commission up and running, the new Frequency Allocation Act hard-coded a time limit into the legislation. The Senate had 180 days to select an NBTC, failing that the task would be given to the executive, the Cabinet of Ministers, to appoint one.

And in the end, that deadline played a larger part than anyone expected. Many disappointed shortlisted candidates and lobbyists were launching lawsuits to halt the selection process. How many were genuine and how many were with the intent of triggering the clause to hand over selection to the government is anyone’s guess, as were the number of people who did not agree with the procedural errors in the selection who preferred to keep quiet so as not to hand over the selection to the executive. It turned into a battle between the conservatives bureaucrats and and the Thaksinites.

In the end, the composition of the NBTC spoke for itself. Of its 11 members, six had military ranks, including Colonel Dr Natee Sukhontrat, Mr 3.9G himself who made the cut and represents telecommunications in the new converged panel.

The selection may be over at the Senate but the drama continues. The Ministry of Justice’s Department of Special Investigation (DSI) is hoping to get the selection overturned (and thus thrown to the government) citing irregularities in the selection sub-committee. Other failed NBTC hopefuls are also filing lawsuits to try and have the process annulled and as of writing, the administrative court has accepted at least one lawsuit for consideration.

Then there is the stance by the hardcore “deep red” faction of the ruling Puea Thai party as exemplified by MP Dr Weng Tojirakarn. These MPs, campaigning on an anti-military platform have said that all bodies under the undemocratic military 2550 (2007) constitution must all be disbanded. They are calling for the reinstatement of the 2540 (1997) constitution, which, if successful, would mean that a return to two separate broadcasting and telecom regulators.

But suppose that all the lawsuits are dropped and the Red MPs do not get their wish of a return to the 1997 constitution, the NBTC has an uphill task ahead of it, one that would have made the twelve tasks of Hercules seem like a walk in the park. From a fair and level playing field in an industry where the concessions and costs are wildly different, to moving forward with refarming digital dividend spectrum, all are challenges which will likely be overlooked as the new NBTC first tackles issues of broadcasting, censorship and freedom of speech which in Thailand’s divided political landscape, looks set to rule the agenda for now.

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