World Cup comes at rule of law's expense

The controversy surrounding broadcast rights to 2014 World Cup matches shows that under the current “military intervention” regime, the rule of law can easily be compromised if it accords with the prevailing discourse of “returning happiness to the people”.

The skytrain sports pictures of soccer stars as public frenzy builds over the World Cup tournament. KRIT PROMSAKA NA SAKOLNAKORN

The recent decision by the National Broadcasting and Telecommunications Commission (NBTC) to use 427 million baht from the Broadcasting and Telecommunications Research Development Fund (BTFP) to buy broadcasting rights from RS Plc and to air all 64 matches on four free TV stations — channels 5, 7, 8, and 11 is indeed a problematic one, flawed with many contradictions to the rule of law.

RS won the World Cup broadcast rights in September 2005, long before the NBTC passed its “must have” rules for sporting events in 2012. The NBTC rules came in the wake of another broadcast rights dispute in 2012 between GMM Grammy, which won the broadcast rights to the Euro 2012 football tournament, and TrueVisions, the country’s largest cable TV provider, which failed to strike an agreement with GMM, over the right to air the matches for its subscribers. The result was a blackout on TrueVisions' screens during all matches.

According to the rules, all free-TV broadcasters are required to transmit six international sporting events through all broadcast platforms without any conditions. In effect, holders of broadcast rights to these major sports events will have to air them on free-TV channels in addition to their own platforms.

These designated sporting events include the Fifa World Cup, SEA Games, Asean Games, Asean ParaGames, the Paralympics, and the Olympics.

In any case, the final ruling by the Supreme Administrative Court two days ago was that RS did not have to broadcast all 64 games on free TV channels, as required by the NBTC, because its broadcast right predates the NBTC’s rules.

The ruling is valid not only because of the above reason but also because the 1994 Copyright Act which provides for the broadcast right stands above the must-have rule which is only a sub-regulation or regulation known as an NBTC notification. These notifications are issued by the power vested in the NBTC by the 2011 Act on the Organisation to Assign Radio Frequency and to Regulate Broadcasting and Telecommunications and the 2008 Broadcasting Act which are the basis of the NBTC’s existence and operation.

Also, the right that is conferred upon in the copyright law derives from a series of international agreements signed by members of the international community. So it is binding at supra-national level. Meanwhile, the must-have rule is produced by a sub-committee or a working group within the NBTC only.

In fact, the NBTC’s must-have rule and its sister provision, the must-carry rule, have often come under criticism for their lack of conceptual and policy basis.

In the UK, there is a similar list of key sporting events, known as “listed events”, compiled by the Department for Culture, Media and Sport (DCMS), to ensure that such events are made available to all television viewers, particularly those who do not have subscription television. Ofcom, the UK’s national communications regulator, then adopted a code on Sports, and Other Listed & Designated Events, which is partially based on this list.

DCMS describes a “listed event” as “one which is generally felt to have special national resonance” and which contains “an element which serves to unite the nation, a shared point on the national calendar, not solely of interest who follow the sport in question".

So, for this reason, the Fifa World Cup finals tournament, the Rugby World Cup final were placed in the protected “listed events” alongside the Scottish FA Cup Final, the Wimbledon tennis finals, and the Derby horse race.

Note just the finals here. The DCMS’s “listed events” do not cover all 64 matches of the World Cup, as intended by the National Council for Peace and Order (NCPO), in its message to the NBTC. And it is quite dubious, if using the same rationale as the DCMS, how the World Cup would have special national resonance for Thailand, which never had a (male) team strong enough to pass even the qualifying round.

According to the latest news, although RS claims that it would incur 766.5 million baht in business and opportunity losses from its World Cup set-top box sales and in sub-licensing revenue from pay-TV operator TrueVisions, it finally agreed to accept the NBTC’s offer of 472 million baht in compensation.

Apart from the highly questionable use of the BTFP which was specified in the law solely for these reasons — universal service, research on broadcasting and media literacy, capacity-building for industry personnel and self-regulation, consumer protection, and promoting safe and creative content — the intervention of the NBTC, under the strong influence of the NCPO, in this matter is a highly inappropriate one, in its rule as regulator. One of the key roles of the communications regulator is to try to prevent market failure, and the best way in so doing is to ensure that all market mechanisms are functioning.

But in this case, the regulator has entered the playing field as a trader, hence disrupting free and fair competition.

While it is clear that the NBTC was cornered into this scenario, we cannot overlook the fact that the rule of law is sidelined for a populist policy in this case.

If the NCPO is adamant upon reform, they must ensure that all independent organisations such as the likes of the NBTC remain at arm’s length from political intervention. No exceptions.