Up until relatively recently, telecommunications in Thailand were mostly operated by the government via state-owned enterprises but increasingly the private sector has come to dominate, with the major state-owned telecom operators – the TOT Plc (formerly the Telephone Organization of Thailand) and CAT Telecom Plc (formerly the Communications Authority of Thailand) – playing less of a role.
The future of TOT Plc and CAT Telecom Plc remains uncertain as their former regulatory role has been eclipsed by the National Broadcasting and Telecommunications Commission (NBTC), their role as landline service providers becomes of ever less economic importance relative to mobile services, and as the three major private sector carriers – AIS, DTAC and True Move – have assumed an increasing share of mobile commercial operations following successful bids at spectrum auctions. Such was the trend under the 3G auctions in 2012 and it looks set to continue with the 4G auctions in the latter part of 2015 and beyond.
Electronic networks and services in Thailand are subject to a variety of laws, including the following key statutes:
The Telecommunications Business Operation Act B.E. 2544 (2001), as amended by the Telecommunications Business Operation Act (No. 2) B.E. 2549 (2006) (the “Telecom Business Operation Act”); and
Act on Organization to Assign Radio Frequencies and to Regulate Broadcasting and Telecommunications Services, B.E. 2553 (2010) (the “Frequency Allocation Law”).
There are also a significant number of other related laws as well as subordinate regulations and notifications issued pursuant to the above laws.
The National Broadcasting and Telecommunications Commission (NBTC)
The main regulatory body for telecommunications is the National Broadcasting and Telecommunications Commission (NBTC), which was established under the Frequency Allocation Law, more details of which can be found here.
Primary authorisations to conduct a telecommunication business in Thailand are through licences which are categorised into three different types pursuant to the Telecom Business Operation Act, and are issued by the NBTC to permit a telecommunications business operator (“Operator”) to function:
Type 1 Licence: This category of license is for an Operator that has no telecommunications network of its own, and the intended business is of a kind that should be broadly provided and liberalised. These licences can be granted upon notification by an Operator that intends to operate such business. Examples of type 1 licenses include businesses involving internet access, audiotext, resale of public switched telecommunication services, and international calling card services. Type 1 licences are valid for five years.
Type 2 Licence: Type 2 licences are granted to Operators that provide services either with or without their own networks, but only when the services are intended for use by a limited group of people, or have no significant affect on fair competition or the public interest and consumers. Type 2 licences are granted for 15 to 25 years for operators with their own networks or five years for those without their own networks.
Type 3 Licence: Type 3 licences are for Operators who have their own networks and provide services for use by the general public which may affect competition, the public interest or consumers in such a manner that they require protection. The mobile services available to public of the three main private sector carriers – AIS, DTAC and True Move – require type 3 licenses. Type 3 licences are valid for periods of 15 to 25 years.
Applications for license renewal are considered separately from initial applications.
The licenses cannot be transferred or sub-licensed, nor can the rights and duties for operating the network be transferred to third parties, although there is a procedure under which the NBTC may consider and approve such arrangements.
Restrictions on Foreign Ownership
Section 8(1) of the Telecom Business Operation Act (as amended in 2006), states that applicants of Type 2 and 3 licenses must not be “alien” as defined under the law governing alien business operation, the Foreign Business Operations Act B.E. 2542 (1999) (the Foreign Business Act). (This requirement was “relaxed” in 2006 during former Prime Minister Thaksin’s regime, from the previously more restrictive provision that required licensees to have not less than a 75% Thai shareholding, three quarters of the directors and all directors authorised to bind the licensee company to be of Thai nationality.) The Foreign Business Act defines a foreign incorporated company or a Thai incorporated company in which 50% or more of the shares are owned by non-Thai shareholders, as “alien”. The Foreign Business Act definition of “alien” does not take into account the nationality of directors, or the types of shares owned (i.e., preference shares or ordinary shares).
There are a number of NBTC regulations governing mobile network interconnection and access under which Type 2 and 3 Operators with their own network must adhere to prescribed standards of open, accessible interconnectivity, including:
1. allowing other Operators to interconnect with and to access their networks,
2. providing roaming services to other Operators;
3. providing unbundled network access on their own networks to permit other Operators unbundled network services; and
4. permitting other Operators to access and use technical specifications on their network for interoperability, so as to facilitate access or interconnection with their networks.
However, Operators may refuse to allow other Operators access to their network if it is insufficient to accommodate the other Operators, or if there are technical difficulties with access, which may interfere with their business.
Pricing, Data Protection, Complaints
The NBTC has established pricing standards for interconnectivity and customers.
If the NBTC considers the interconnectivity charges unreasonable or excessive, it has the authority to order Operators to formulate steps and plans for restructuring their charges, and to submit them for the NBTC’s approval. The NBTC has broad powers to impose the procedure and to determine network access or interconnection charges that it deems appropriate.
The NBTC requires Operators to offer services to customers in compliance with standards set by the NBTC, including with respect to prices offered to customers, and protection of customer’s personal data and privacy.
The Telecommunications Consumer Protection Institute has been established to receive and consider customer complaints, and the NBTC also requires that licensees establish their own call centres to receive complaints.
The telecommunication sector in Thailand continues to grow rapidly, and the 4G auctions in late 2015 will further enhance this. The NBTC will need to adapt rapidly in its regulatory role to accommodate both the continuing economic growth in the sector, and the rapidly changing technology.