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Thailand Law Journal 2009 Spring Issue 1 Volume 12From this viewpoint, operators have seen the necessity of interconnection, even while they have not been required to interconnect. They seek to interconnect each other without necessary role of TOT as the incumbent. The asymmetric regulation imposing on the incumbent is not needed today. Interconnection obligation as in the 2001 Telecommunication Business Act should be interpreted as general and symmetric regulations.
Besides unnecessary asymmetry of interconnection, there has been market adaptation corresponding clearly to its transformation through a series of solutions to the phenomenal problems which are now being discussed following. As for international communications, CAT was playing as the monopolized gateway for international communications since its establishment.155 However, the market reform enables NTC to issue new licenses for many kinds of telecom operators including international gateway operators.156 NTC first granted a new international telephone service/gateway license type III for AIS International Network Co., a Shin’s subsidiary company, on 29 June 2006.157 NTC then granted an international internet gateway license type II158 for True Internet Gateway Co. (TIG), a True’s subsidiary company, on 15 August 2006, which means at this point that TIG have to operate its gateway via CAT facilities. These two licenses could be considered as a spear head in liberalizing the CAT’s monopolized international telecommunications market. Few months later, NTC adopted the automatic licensing system for international internet gateway license.159 Mandatory internet interconnection via CAT has then been actually abolished. On 27 December 2006, there was a phenomenal earthquake at Taiwan which reflected the need of redundant international communications networks. CAT’s submarine cables was cracked in 4 major routes: APCN (Asia Pacific Cable Network), C2C, FLAG, and SEA-ME-WE-3.160 It affected 50% international communications bandwidth of Thailand including services on telephone, internet, and data communications. Operators began to be intensively aware of redundancy.161 It then opened the door for NTC to overcome controversies162 and to allow all internet gateway operators connecting directly to the international network as for alternative communications routes. This has encouraged new entrants; as of December 2007, there are 9 international internet gateway operators.163 With the similar consideration on redundant domestic networks, NTC also granted wireline network licenses type III to 3 national electricity authorities with an expectation on advantages of their grids including Electricity Generating Authority of Thailand (EGAT), Metropolitan Electricity Authority (MEA), and Provincial Electricity Authority (PEA).164 With regard to business environment of the industry, telecommunication operators of both wired and wireless including other media in the convergence world are strong enough in open competition. Although the telecom industry has, in many respects, just recovered from the serious financial crisis experienced by the country in 1997, every operator have found their own partners to rebuild themselves. AIS has been taken by Temasek Holdings.165 DTAC has been taken by Telenor.166 True and its affiliates have been brought back into CP group:167 the one of largest holding group of Thailand. TT&T have found its partner: NTT DoCoMo, for its 3G nationwide project.168 A concern would be that TOT and CAT can compete very well in the industry. Today operators do not have very much concern in market dominance of the incumbent. The level playing field has been set up and ready for a higher level of competition. Because there had ever been none of regulator of both general and telecommunication markets, operators have been marketing and operating its business mostly in their own efforts. The market has seen the vacuum of regulation for quite a while. Interestingly, regulatory ambiguity turned out to be a key factor for low prices and highest growth of the industry because those operators sought to seize market share: revenue and subscribers as much as possible before any regulation being imposed. This could be an opportunity for NTC to promote competition by using the light-handed approach. NTC is a leading agency today in regulating Thailand market especially regulating the most influential telecommunications sector. They have many lessons from various leading countries of telecommunication industry which are in transitioning towards general competition. However, it is underway to be proved of its efficiency. Competition regulations require very high skill in analyzing a number of market factors. Although another agency: the Trade Competition Commission (TCC) is in position of regulating competition in general, they have shown very little experience and much dependency under the government.169 Even though NTC have been established for few years, there are 48 orders and notifications as of October 2006 in various matters including telecommunications business, internet services, frequency allocation, radio communication standards and equipments, etc.170 NTC have also made decisions on a number of disputes between operators.171 This is a well-startup of an institutional regulator which would pave a way to more comprehensive measures like “market definition” and “market analysis” as does the EU. NTC are now in good position especially when asymmetric regulations are not required. 4. ConclusionU.S. telecommunications is historically unique in its path, especially of its competition experiences throughout the century. It has been imposing many kinds of government intervention, court rulings, sector-specific regulations, etc., together with its leading position of technology, which brought the industry great maturity than others. With regard to transitioning towards general competition, this article has emphasized a necessity of interconnection regulations as a sector-specific regulation of the industry. However, U.S. antitrust law has developed its own doctrine of “essential facilities”, which coped directly with the matter of interconnection. Despite the implied repudiation of the Supreme Court, essential facilities is the well-established doctrine in the reasoning of refusal to deal that could be developed in line with general competition. This could be a foreseeable way of transitioning in prospect of interconnection towards general competition. |
155 Thairath, “NTC to issue new gateway license with hopefully free trade”, <http://www.thairath.co.th/ news.php?section=technology03b&content=16908> |
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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