When "Thai time" gets in the way of progress

       Should we call for a rethink in 3G after all and wait to get things done right, according to the rules? The regulator, the National Telecommunications Commission, is treading forward on shakey legal ground and in doing so,might be tailoring the 3G licenses more towards keeping lawsuits at bay rather than working in the best interests of the kingdom.
       The problem stems from Section 305, paragraph 1, and Section 47, paragraph 2 of the 2007 constitution and no, returning to the 1997 constitution would not help, as history has already proven the 1997 framework unable to get 3G rolling after 10 years of squabbling.
       Section 47(2) calls for an independent regulatory body, the new National Broadcasting and Telecommunications Commission (NBTC), to have the duty to distribute frequencies as per paragraph 2, or for the best public interest. However,305(1)says that 47(2) shall not come into effect until the body is set up, which must be done within 180 days of the constitution coming into force.
       That 180-day limit should have given us an NBTC by February 2008. It was there as an attempt to solve a deadlock in the 1997 constitution that saw 10 years pass without a National Broadcasting Commission set up. Thais are not known for their punctuality, be it for meetings or for obeying time limits set in the constitution.
       305(1) says that there shall be no 47(2) until the NBTC is up and running. To most people, common sense would suggest this means that there is to be no frequency allocation until we have selected an NBTC.
       So where does that leave the National Telecommunications Commission (NTC), one half of the two independent regulators set up under the 1997 constitution - the other half being the never established National Broadcasting Commission (NBC)? Why is it now pushing so hard for 3G licenses to be issued?
       One of my sources, a former TOT executive who asked not to be named, said that this was the very question that the NTC has been working on for the past two years since the constitution was passed.They asked the Council of State (the government's legal advisers) for clarification and the answer that finally came down after years of debate finally paved the way to this renewed move to 2.1 GHz 3G licensing.
       The answer was that the NTC could give out 2.1 GHz 3G licenses as it was not considered allocation of frequency in a way that needed consultation with the broadcasting regulator.
       The NBTC is to be a merger of the NTC (telecommunications) and NBC (broadcasting) into the same body. While some, myself included, have said that dividing the NBTC into its proposed telecommunications arm and broadcasting arm is not a good idea and that it should be divided into an infrastructure layer and a content later, it is no doubt better than having two equal but separate organisations that must agree on frequency allocation. Its role is to write up a frequency map and issue licenses to operators, be it broadcasting (TV, radio) or cellular telephone operators.
       The reasoning that the NTC can go ahead with 2.1 GHz 3G licensing was that the NTC still has jurisdiction over licensing anything that is purely telecommunications and will never be broadcasting.Since the International Telecommunications Union has decided 2.1 to be a purely telecommunications band, then by all means go ahead. However, for 2.3/2.5 GHz WiMAX, the frequency is also used by TV operators, thus a decision on WiMAX will have to wait for the NBTC to decide if those frequencies are to be used for WiMAX or for beaming television pictures in Thailand.
       This argument sounds reasonable enough, but it is understood that not all the NTC commissioners are comfortable with this interpretation. After all,305(1) said that the NBTC had to be up and running within 180 days, so it could also be interpreted that the NTC only had jurisdiction for the 180 days after the new constitution took effect (it is now over two years). Also, it only protects any agreements made before the constitution took effect, not ones made afterwards. Any license issued by the NTC under these circumstances could be on shakey ground indeed.
       If the licenses are subject to legal interpretation,the only way forward for the NTC is to ensure that all the bidders leave the table happy so nobody will lodge a challenge in the courts, but that runs against the idea of having a regulator in the first place. The regulator is supposed to be keeping the operators on their toes to ensure that the consumer gets a good deal. If the roles are reversed and it is the operators holding a legal knife against the regulator,what happens is collusion and when that happens,the consumer inevitably loses out. The NBTC would not be hampered and thus could be much stronger in its dealings with the operators.
       We are talking 15-year concessions here and an entire generation might have to live with any bad decision that comes from what unfolds in upcoming months. Perhaps the roll-out requirements to rural areas is not as fast as the NTC would have liked, or perhaps the cost of the licenses are lower than what would be optimal.
       Waiting for the NBTC would be very bad in terms of further lost opportunity and business productivity due to continued lack of telecommunications infrastructure. Pressing ahead might not work anyway as any loser of the auction might launch a legal challenge and land things in limbo while the courts work their way through the arguments. The Council of State, despite its fancy name, is essentially the government lawyer, not the courts.
       The 2007 constitution came into force on August 24,2007 and successive governments have had the chance to set up the NBTC. If only Surayud, Samak,Somchai and even Abhisit had done their job properly, things would be so much clearer now.
       On a side note, further light was shed on the 850 3G situation in that meeting. Given a choice, none of the operators would choose to use 850 for 3G under the current contract for two reasons. Firstly,the 30 percent revenue cut that has to go to the CAT Telecom as concession holder.2.1 GHz was always viewed as a way out of the revenue-share model. Secondly, with the concession ending in 2018, that leaves only nine years before any new 3G equipment has to be handed back to CAT, and nine years does not make for any economic model for a 3G roll-out, let alone one where a third of revenue has to sliced off. However, my source told me that from a regulatory standpoint, the 850 squabble was an purely an internal CAT matter.They could move DTac around and give a new license to TrueMove as from the government's point of view, it is CAT's frequency and CAT can do with it as it wishes.