Thailand’s telecoms regulator, the NBTC, has reportedly given state telco TOT approval for its 4G business plan just weeks after it was rejected by the full board according to its secretary-general Takorn Tantasit.
In a report in The Bangkok Post, Takorn said that the telecoms sub-board will approve TOT’s 2.3-GHz 4G network later this week, and that there was no more reason for a delay.
The U-turn came after TOT CEO Montchai Noosong and S-EVP Rungsun Channarukul met with Takorn on Monday to clarify details of the business plan.
Takorn said that TOT would follow the CAT-True Move 850-MHz model and that the NBTC would closely monitor the partnership to ensure that Section 46, the no-subletting clause of the NBTC Act, is not violated:
Section 46 A: spectrum license for telecommunications business is the exclusive rights of the licensee and is not transferable. The licensee who has been authorized to use spectrum for telecommunications services shall carry out the services by himself or herself. Business management either in whole or in part shall not be rendered or permitted to other to act on his/her behalf.
On February 21, the full NBTC Board convened and turned down a request for TOT to launch 4G using its existing 60 MHz of spectrum on 2.3-GHz.
The NBTC board ruled that TOT’s 2.3-GHz plan did not meet the definition of a wholesale-retail agreement, and that the proposed operator was not an MVNO but a full MNO. It noted that even if TOT were to operate the network itself, it would not count as a wholesale-retail agreement (and would break laws under which the state is not allowed to compete with private sector telcos).
The board concluded that giving 60 MHz to TOT was an inefficient waste of spectrum and money, and recommended that if the telecoms sub-committee so agreed, it should revoke TOT’s 60-MHz for re-allocation under Section 47 that allows recall of unused spectrum.
This announcement opens up a can of worms.
It is also worth mentioning that the CAT-TrueMove 850-MHz deal itself was investigated by a sub-committee set up by former NBTC for legal Suthipol Thaweechaikarn, which ruled that they had broken the law unintentionally and should not be punished. Suthipol ordered the sub-committee to reconsider its findings. Later, he was moved by the current junta to the Election Commission and the matter went quiet.
What could have been said in just one meeting between TOT executives and the regulator on Monday that changed everything?
The clock is ticking
On a political level, Takorn – as the highest ranking civil servant – is the only one who will likely keep his job when the new NBTC Act that puts the regulator back under the control of the Digital Economy Commission is passed in a few months and a new board is selected. The commissioners know that their days are numbered and perhaps the comments are coming after those who are probably going to be the new commissioners have been consulted.
Then again, not everything Takorn says is followed through. For instance, he said he would tell “Nintendo” to ban Pokemon Go near roads, government offices and monasteries, and went so far as to meet “their” lawyers (which were coincidentally True’s lawyers) to demand change. Nothing happened and Takorn’s angry comments were directed at the wrong company (it was of course Niantic, not Nintendo, who developed the game). To this day, Pokemons are still found on roads and monasteries throughout Thailand.
On another level, nothing in the report changes the fact that the business plan presented three weeks ago obviously breaks Section 46 of the NBTC Act. No minutes of the meeting between have been published, nor are they likely to be. The report in the Bangkok Post mentioned that issues with the public-private partnership laws had been resolved. The PPP laws preventing competition with the private sector were only a secondary issue. The real issue was Section 46, the no-subletting law.
It beggars belief that after five years of TOT trying to launch 2.3 GHz and failing, all it took was a brief meeting between the three gentlemen to fix everything.
To further add to the mess, Rungsun said that 13 prospective partners will now proceed and submit their bids on schedule on March 27. This again stretches credulity. Something major had to change in the last three weeks that made the regulator approve the plan it had earlier turned down. The changes would have to be significant. If they were significant, how can the potential bidders turn around and prepare their new bids in just two weeks? If the changes are minor, how is the plan now legal under Section 46?
That must be weighing heavily on the minds of the potential bidders, of which Dtac was an early favorite. Even if TOT says it is legal, and even if the NBTC telecoms board goes against the recommendation of the full board and approves it, what if someone, somewhere – say, the auditor-general or the ombudsman – concurs with the full NBTC board resolution and asks the courts for an injunction?
The clock is ticking. TOT was only given 15 years on its 2.3 GHz license. It has already wasted five years coming up with a business plan and only has ten years left. Further legal wrangling could take years off the life of the network.
The full NBTC board said that the spectrum should be recalled under Section 47 and be re-allocated via auction. That would probably be wisest way forward, given the omnishambles Thailand is rapidly finding itself in, and everyone would win except TOT. Though somehow the wisest and best things rarely happen in the Land of Smiles these days.