Legal fears leave satellite bids up in the air

Efforts by the telecom regulator to liberalise the satellite business through a licensing regime and the auction of orbital slots now seem stuck in limbo, complicated by various issues including the risk of constitutional violation.

The board of the National Broadcasting and Telecommunications Commission (NBTC) on Aug 18 decided to cancel the auction slated for Aug 28 because only one bidder was participating. That bidder was TC Space Connect, wholly owned by SET-listed satellite service provider Thaicom.

Trairat Viriyasirikul, acting secretary-general of the NBTC, said only one bidder would mean an unfair auction, while NBTC management was instructed to adjust the principles and methods of the auction to create better conditions.

The Aug 28 auction was meant to mark the transition of the country’s satellite business from a concession model to a licensing regime.

A politician recently questioned whether an auction breaches the constitution, claiming the NBTC has no right to conduct the auction of the satellite orbital slots.

The NBTC is convinced it has the authority to hold the auction, according to Section 27 of the amended NBTC Act, which came into effect in 2019.

The issue is likely to end up in the Constitutional Court, which means any auction would be delayed until a ruling. The delay could affect the national interest as the country risks losing the orbital slots if they are left unused for three years, in line with the principle of the Master International Frequency Register.

A source on the NBTC board who requested anonymity said the board held two meetings before deciding to scrap the auction. The first meeting the board passed a resolution to cancel an auction condition that allows the bidding to take place even if there is only one contender. The board also scrapped the auction’s timeline.

The source said NBTC acting chairman Gen Sukit Khamasundara implied at the meeting the government had signalled the Aug 28 auction had to be aborted.

Legal Challenge
Warong Dechgitvigrom, acting leader of the Thai Pakdee Party, pointed out the auction risks violating Section 60 of the constitution.

The section indicates that transmission frequencies and satellite orbits are national treasures, and the state must maintain them in order to use them for the benefit of the country and the people.

Mr Warong said an auction under a licensing regime would be detrimental to the country as all assets involved would fall into the hands of private companies.

Orbital slots should be allocated only through concession, where all related assets will have to be transferred to the state, he said.

The section does not make clear the NBTC’s role in the orbital slot usage arrangement, said Mr Warong.

He petitioned the Central Administrative Court on Aug 17 to issue an injunction to suspend the auction, and asked the court to forward the issue to the Constitutional Court to rule whether the auction breaches the charter. Mr Warong also filed a petition with the government and the NBTC to halt the auction.

The NBTC source said the regulator’s board and management strongly believe it has a duty to award the rights to the orbital slots.

Citing Section 27 of the amended NBTC Act, the source said the agency has a responsibility to draft the principles and methods for awarding the rights to use satellite orbital slots.

“Given Section 27, the NBTC board and management cannot reject its duty and authority to manage the rights to use the orbital slots,” the source said.

The NBTC could face legal action if the orbital slot usage rights are taken away from the country because they are left unused, based on the Master International Frequency Register, the source said.

“No one can predict a timeline for the auction. We need a clear direction from the government,” the source said. “It is good the Constitutional Court will look at this issue because the court’s judgement will settle it.”

A satellite business veteran who requested anonymity said it is important to consider whether the orbital slots are really national treasures.

“Utilisation of the slots need to be recorded in the Master International Frequency Register and approved by the International Telecommunication Union,” he said.

Digital Economy and Society Minister Chaiwut Thanakamanusorn has made it clear the auction should be presided over by new NBTC board members. The recruitment of new board members has begun.

The auction, which involves many slots, requires thorough and prudent consideration to ensure optimum benefit for the country, said Mr Chaiwut. Bangkok Post