Rising clamour for reform as regulator is accused of wielding too much power and not acting in the public interest, write Komsan Tortermvasana and Sriwipa Siripunyawit
The National Broadcasting and Telecommunications Commission (NBTC) is another regulatory body that has recently come under fire amid all the changes and restructuring proposed by the military regime.
Academics, non-governmental organisations, consumer protection foundations and even some NBTC commissioners have fully supported the idea of reforming the NBTC.
It has been accused of lacking transparency, acting in favour of business operators and not the public interest, not complying with laws and having too much power to rule or influence the private sector. There is no independent watchdog to monitor and audit the regulator’s operations.
“All commissioners must be replaced,” said telecom scholar Anupap Tiralap. “We need those with higher morals and integrity.”
Mr Anupap sat on a committee that drafted the Frequency Allocation Act (FAA) and the Telecommunications Business Act.
“It is time to reform NBTC’s management and its operational structures and change impractical regulations to ensure functional transparency after applying the FAA for three years,” said Col Settapong Malisuwan, NBTC’s vice-chairman, adding that almost all 95 sections of the 2010 FAA are likely to be amended for the benefit of the country and its people.
The NBTC’s legal subcommittee is gathering impractical items that must be amended and will pass them to the telecom committee before submitting them to the junta for
CHANGE OF STRUCTURE
Mr Anupap suggested three steps of reform – immediate, medium and longer term – with a change of NBTC commissioners as a priority. “I judge from their unsatisfactory work and performance from the past until today,” he said.
He believes the NBTC has not complied with existing laws or acted in the public interest. He gave the problematic prepaid services as an example. The NBTC has received at least 300 complaints yet the problem has never been resolved. It has also failed to resolve complaints within 30 days as required by consumer protection laws.
“The NBTC’s committee must be clear whose side they will take – consumers or operators,” Mr Anupap said.
NBTC’s board consists of 11 commissioners and is divided into two committees. Five committee members are in charge of the telecom sector, with five focused on broadcasting and another as chairman of the board.
Mr Anupap suggested the number of commissioners be halved and there should be only one committee looking after both the telecom and broadcasting sectors because the technologies are inseparable today.
“Laws and regulations must be combined. We should no longer talk separately about telecoms or broadcasting but about the overall communications network with the same standards,” he said.
Col Settapong agreed, saying the FAA was wrongly designed and was impractical to keep pace with the development of today’s technologies and industries.
REVISING SELECTION PROCESS
The selection process for commissioner must also be revised, said Col Settapong. He disagreed that the new committee should include representatives from nongovernmental organisations or activists.
“Some commissioners and I have learned that they often bring unpleasantness to the board’s management decisions,” Col Settapong said.
An industry source said commissioner Supinya Klangnarong represents consumer protection for broadcasting, while Prawit Leesthapornwongsa takes responsibility for the telecom sector. Mr Anupap said the selection process for commissioners should be similar to those of the National Anti-Corruption Commission, Election Commission and Constitutional Court. Importantly, it must be conducted without the influence of politicians and business people.
“The commissioners must have real knowledge of communications and information, while the regulating must involve both communications structure and its content,” he said.
The power of the regulator has also been questioned. According to Mr Anupap, it is practical to have a regulatory body with full power to successfully fulfil its duties. However, it must regulate with transparency with regard to the public.
“Most information including details of licences and conditions must be transparent and accessible,” he said, adding that investigation of the regulator’s practices must also be achievable.
Punishment for a breach of laws and regulations by the regulator must also be clearly stated in the laws. An independent watchdog should be set up.
The roles of the broadcasting committee have also been questionable. “It has done what it’s not supposed to, but it hasn’t done what it’s supposed to,” said Mr Anupap.
“The broadcasting committee hasn’t come up with any regulations governing content while instead it has put must-have and must-carry rules into practice. I believe the must-carry rule is applied in the US and some countries but the must-have rule is applicable in Thailand only.”
The implementation of these rules is likely to affect the way operators do their business in the future.
AMENDMENTS OF LAWS
According to NBTC commissioner Suthiphol Taweechaikarn, several sections and details of the FAA must be urgently amended.
The first is that the act must stipulate that the regulator transfers proceeds from auctions involving both telecom and broadcasting spectra to state coffers. Only auction proceeds from the telecom spectrum are currently transferred.
The amendment will allow the NBTC to secure such proceeds in its Broadcasting and Telecommunications Research and Development Fund for the Public Interest and allocate the funds to develop broadcasting services.
Mr Suthiphol is also chairman of NBTC’s legal subcommittee.
Worapoj Wongkitrungrueng, an academic at Thammasat University and a researcher at the Thailand Development and Research Institute (TDRI), suggested that the NBTC’s annual budget be passed to parliament for approval.
Currently, the regulator freely sets and allocates its own budget with approval from its own board.
To ensure capability of the audit mechanism, Mr Worapoj suggested the NBTC office and its commissioners be under the Constitutional Law through the ombudsman so that they can verify and file complaints directly to the court.
Duanden Nikomborirak, research director at TDRI, suggested setting up an independent consumer protection panel to replace the panel under the NBTC’s structure that has proved to be impractical. She said the regulator held too much influence on the panel.
PUBLIC INTEREST BIDDING
Section 45 of the FAA limits the NBTC to allocating frequencies only through auctions. The section is said to guide the country’s telecom and broadcasting development towards “unlicensed regimes”.
Mr Suthiphol said allocations of some spectrum ranges for national security, taxi radios and satellite frequencies did not need an auction to comply with international practices.
Amending Section 45 is expected to allow higher flexibility for allocating spectrum such as a “beauty contest”. With this method, the regulator will set up a reserved price while applicants are required to submit a predetermined set of benefits and criteria such as speed of deployment, spectrum efficiency, stimulation of competition and benefit to the country.
Mr Anupap also disagreed with the auction-only option. “Today there are no countries in the world saying an auction is the best method, as it neglects the public’s benefits,” he said.
He suggested “public interest bidding” – a method similar to the beauty contest except that lists of criteria and benefits proposed by applicants must be made known during a public hearing.
“All criteria and benefits proposed by interested bidders will be considered parts of a contract. This way will promote transparency and prevent breaching of contract because all bidders’ offerings are stated in front of the public,” said Mr Anupap.
Mr Worapoj also called for increasing public involvement prior to drafting regulations and enforcement.
Amendments to the FAA will be submitted to the National Legislative Assembly.
First published: Bangkok Post, August 13, 2014