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Thailand Law Journal 2009 Spring Issue 1 Volume 12This has reformed the legal structures and entities which reflected from the commitment to the WTO. Then 2 new communications laws have been enacted in order to reform the telecommunications market in compliance with the principles set out by WTO. The first is the Act on the Organizations to Assign Radio Frequency and to Regulate the Broadcasting and Telecommunication Services of 2000.141 The other is the Telecommunication Business Act of 2001.142 There is also the Trade Competition Act of 1999143 governing on general trade competition. However, there were a very small number of 20 complaints to the Department of Internal Trade (DIT) until 2003, 144 which reflects its very few experience and high dependency on the government. This study is focus on NTC and the interconnection provisions set forth in the Telecommunication Business Act of 2001. The 2001 Act was a significant shift of the telecommunication reform. It addressed essential issues of telecommunications industry including Licensing, Access and interconnection, Standard of Telecommunications Network and Equipments, Rights of Licensee, Rights of User, Contract for the Supply of Telecommunications Service, Fee and Tariff in Telecommunications Service, Regulatory Enforcement, and especially Transitory Provision. The major reform of the 2001 Act should be matters of licensing and interconnection which dramatically changed the business factors of industry.
From the provisions on access and interconnection, at least two considerations should be addressed. First, there is no different obligation between incumbent and others. This is different from the 1996 U.S. telecommunication Act that only incumbent LECs will be mandated. It could be noted that this provision impose the obligation of access and interconnection in general. The practical arrangements will vary in details and depend on capability of each operator. The provision language is broad but leaves room for parties to exercise their own wills to achieve collective goal of access and interconnection. Second, there are unclear defenses for refusal to provide access, not for interconnection: (1) inadequacy of network, (2) serious technical problems which may occur, and (3) other prescribed cases. It seems arguable in every single defense. Inadequacy of a network might not be an absolute position; every network normally enhances its coverage and capacity. Reasonable period of delay time should be acceptable. Interference and obstruction of telecommunication are also very broad terms. They require much more definition which is likely to be argued. There is flexibility in language of other prescribed case but nothing has been prescribed thus far. However, NTC have announced its notification on matters of access and interconnection. The notification provides that every operator needs to announce its interconnection offer in order to let every operator meet and negotiate their own arrangement if they find difficulties.147 In case that the negotiation was failed, NTC would order an interim arrangement.148 3.3 Considerations on Necessity of Asymmetric Regulations and the Phasing-outAs foregoing explanation, Thailand embraced sector-specific regulations for telecommunications industry since before the market reform; however, those regulations were aimed at providing telecommunications infrastructures and services by establishing PTD, TOT, and CAT. However, asymmetric regulations are not said to be established. It was rather asymmetric obligations on concessionaires resulted from their different concessions and different provisions. It was understandable at that time to grant a number of concessions in order to allow participation of private funds. Then all concession mandated operators to interconnect via TOT. Therefore, there has never been a restriction for an incumbent to provide undesirable interconnections or an unreasonable advantage for new entrants to get into the market by free riding. Even though the market reform have been influenced mostly by its commitment to the WTO, Thailand’s market have also seen much possibility opening to higher level of competition, which we call herein “general competition”. The indication of possibility could be seen from 2 arguments following: (1) asymmetric regulations of interconnection are not required, and (2) positive environment is clear in transitioning toward general competition.
Before the market reform, interconnection was not a major problem due to those concessions in effect to mandate every operator interconnecting with TOT as domestic telecommunications trunk exchange, and CAT as international gateway. Operators have found no difficulty in mandatorily interconnecting with TOT and CAT. Today interconnection schemes have changed both domestically and internationally. TOT and CAT already lost their monopoly roles as discussions that follow. For domestic communications, operators were actually happy interconnecting with TOT as the prime telecommunication agency. Should problems occur, they have to solve problems themselves and sometime offer some benefit to TOT in return that they will be able to enhance interconnection capacity with TOT. Moreover, interconnection charges by TOT were discrete arrangements due to different concessions with different agencies. AIS was paying the lowest sum of interconnection charges149 because it was an direct concessionaire of TOT. This was not a very big deal because during the concession period, the competition was not that intense. The traffic usage was stable and predictable. Shortly after the market reform, three questions have raised: (1) if this mandatory interconnection duty is still in effect with regard to the 2001 Telecommunication Business Act; (2) what is the solution today that operators have found themselves needing to enhance their interconnection capacity while centralized interconnections via TOT become insufficient; and (3) discretion of access charges and revenue share set out by concessions become unreasonable burden to operators in the reformed market.150 Considering the fact that Thailand’s telecommunication market has been reformed in 2001 and there is no regulator until late 2004, operators competed in the unclear regulatory environment. Interconnection become a major problem in 2005.151 It was a bottleneck between mobile phone operators; users cannot make inter-network calls as proper. Because of a mandatory clause of concessions, they have been required to interconnect directly and indirectly via exchanges of TOT which cannot responses to the very high demand growth. As a former state-owned enterprise in wired line business, TOT has not taken actions promptly. NTC have waited and seen the problem without taking any action, even an analysis report to propose a solution. Almost a year later, NTC’s resolution has been announced to appoint a consulting team in resolving the problem of inter-network calls.152 Restrictions of interconnection between mobile operators have been resolved by bypassing TOT’s exchanges. It could be noted that the largest operator have taken actions very slow with insufficient amount.153 Until now, TOT is still trying to claim its authority over concessions.154 |
141 The Act on the Organizations to Assign Radio Frequency and to Regulate the Broadcasting and Telecommunication Services B.E. 2543 (2000) |
This article is published with the kind permission of Piyabutr Bunaramrueang, Professor of Law at the School of Law, University of the Thai Chamber of Commerce. This article was presented at the 2007 ALIN International Academic Conference at Chulalongkorn University. Except where otherwise noted, content on this site is licensed under a Creative Commons Attribution 3.0 License, <http://cc.in.th/wiki/by_f> |
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