NBTC lays ground to appeal DTAC order
The telecom regulator is preparing to file an appeal to the Supreme Administrative Court against the Central Administrative Court’s order that allows Total Access Communication (DTAC) to continue using the 850-megahertz spectrum that hosts 90,000 users until December, even though DTAC’s concession expired on Sept 15.
The regulator will file an appeal with the court if DTAC does not submit bid documents for the second-round auction of the 900MHz licence by the deadline on Tuesday.
According to a source in the National Broadcasting and Telecommunications Commission (NBTC) who requested anonymity, the regulator is confident of its legal standing in asking the court to order DTAC to stop using the 850MHz spectrum.
The NBTC’s latest move comes after the regulator hinted DTAC’s parent company Telenor is hesitant to have DTAC join the bid.
Takorn Tantasith, the NBTC’s secretarygeneral, refused to elaborate about any legal manoeuvres, only saying that the regulator has to maximise benefits to the state.
The source said if DTAC sits out the second-round auction of the 900MHz licence, the NBTC will make a critical challenge to the Central Administrative Court order that allows DTAC to continue using the 850MHz range until Dec 15.
Previously, DTAC filed a petition before the Central Administrative Court on Sept 6 asking for an order of temporary protection for customers by allowing DTAC to continue using the 850MHz slot after its concession expired.
On Sept 14, the Central Administrative Court allowed DTAC to continue using the spectrum until Dec 15, three months after the concession expired.
According to the court order, the NBTC’s July resolution that barred DTAC from using the spectrum after the concession expired was lifted.
The NBTC board’s resolution in July ruled that DTAC must submit bid documents with a bid guarantee for the planned auctions of 1800- and 900MHz in order to express intentions to use the spectrum ranges under the remedy measure, but DTAC sat out the 900MHz auction.
The court also ruled that DTAC has the right to enter the NBTC’s customer protection measure regulation for providing service until Dec 15, or until the 900MHz licence auction is complete, but no longer than one year after the ruling.
The source said there are three significant legal angles in the Central Administrative Court’s order.
First, the court saw the NBTC board’s July resolution as conflicting with the law.
Second, without temporary protection of DTAC customers, addressing a remedy measure is difficult because the remaining users on the 850MHz spectrum will face service disruption immediately after Sept 15.
Third, the court’s order that allows DTAC to continue using the 850MHz spectrum assumes it will not affect the state’s operation.
DTAC operates mobile service on the 1800- and 850MHz spectra under the CAT Telecom concession that expired on Sept 15.
The NBTC planned for the first round of 900MHz licence auctions to upgrade DTAC’s 850MHz service to the 900MHz range. This was foiled when no bidders joined the first round.
The source said the third legal angle is critical and would likely make the Supreme Administrative Court consider removing the existing order because the state’s operation will be affected if DTAC sits out the 900MHz auction again.
“This is a significant reason to challenge the existing order,” said the source, adding that if DTAC sits out the auction again while the company is able to continue using the 850MHz spectrum, DTAC will be using the national resource at the state’s expense.
In addition, the latest version of the second round of the 900MHz auction draft was amended particularly to serve DTAC’s previous requests to the NBTC.
The source said of 94,625 users remaining on the 850MHz network, only 60,000 users are registered as i ndividuals, while the rest are used for machine-to-machine connectivity.
DTAC also signed a network roaming agreement for AIS’s 900MHz network last year. The network roaming fee depends on transaction volume.
“If DTAC decides to sit out the auction again, it is reasonable to refuse continued use of the 850MHz spectrum,” the source said.
The NBTC allows interested companies to pick up the bid documents for the second round auction for the 900MHz licence during Oct 1-8.
The NBTC is scheduled to hold the auction on Oct 20.
The 900MHz licence contains 5MHz of bandwidth or 5x2MHz for upload and download.