[bangkok post] The National Telecommunications Commission cannot hold auctions for 3G mobile broadband licences because it would violate the Constitution, according to the attorney-general and the president of the Lawyers Association of Thailand.
The telecom regulator should await the new frequency allocation law that is now under scrutiny by Parliament, the legal experts said at a seminar held yesterday by the Law Faculty of Thammasat University.
Attorney-General Julasing Wasansing said that although the NTC was established under the 1997 Constitution - which was replaced by a new charter in 2007 after the 2006 military coup - the telecom regulator continued to function as usual because the military-backed government did not dissolve it.
However, he said that in terms of describing the role and duty of the NTC in auctioning frequencies or issuing new regulations, the 2007 Constitution states clearly in Section 47 that all radio frequencies are natural resources that have to be used for public services.
Before any allocation of the frequencies can take place, Section 305 of the Constitution says a new frequency allocation law must be passed and a new regulator - the National Broadcasting and Telecommunications Commission (NBTC) - must be formed within 180 days after the government makes its policy statement in Parliament.
The 180-day timeframe has long since passed, but the NTC still needs to await the new law to define its role and duty in the 3G auction.
Mr Julasing advised the NTC to operate instead under the existing Frequency Allocation Law in effect since 2000 and avoid issuing new regulations and deciding on new matters during the transition period.
He agreed with the 3G auction but warned that if the NTC insisted on going ahead, it could face legal difficulties on a scale similar to the aborted privatisation of the Electricity Generating Authority of Thailand or the Map Ta Phut industrial estate case.
Dejudom Krairit, the president of the Lawyers Association of Thailand, said private operators have filed legal actions against the NTC over the 3G auction and were questioning its actions.
He said the government needed to keep in mind the interest and security of the country.
This includes the financial health of the state telecom enterprises TOT and CAT Telecom, he said. Both depend heavily on revenue-sharing payments from operators under the existing concession system.
Analysts have said that operators who win 3G licences are likely to shift customers from the existing services to new 3G businesses that would not be governed by concessions.
Thammasat University law expert Dr Worajetn Pakirat disagreed, saying that national security should not be a condition to prevent private operators from competing for licences.
However, he acknowledged that the NTC could risk facing legal challenges if it went ahead with the auction.
3G auction 'would violate charter' - attorney-general