Two major mobile operators are threatening to sue the National Broadcasting and Telecommunications Commission (NBTC) if it fails to issue third-generation (3G) licences by mid-January.
The telecom watchdog earlier committed itself to granting the licences to the three bid winners within 90 days of the auction results for 45 megahertz of spectrum on the 2100-MHz band being certified.
The auction winners - subsidiaries of Advanced Info Service (AIS), Total Access Communication (Dtac) and True Move - paid half the bid price to the NBTC after it formally declared the winners on Oct 19.
The NBTC also said it would grant 15-year licences to the three bidders within seven days after their upfront fees were paid.
"We plan to file a petition with the court against the NBTC for failing to award us licences as stipulated in the 3G's information memorandum," said Somprasong Boonyachai, executive chairman of AIS's parent InTouch.
Meanwhile, Athueck Asvanund, a vice-chairman of True Move, said his company will also consider joining any legal action against the watchdog if the licences continue to be delayed.
Mr Somprasong said operators have no choice but to protect their rights.
The prospect of the NBTC granting the 3G licences by the deadline is now complicated by the Ombudsman's decision Thursday to take the 3G auction to the Administrative Court.
In a unanimous decision, the three members of the Ombudsman's Office agreed to ask the court to decide if the 3G auction was free and fair and to issue an injunction halting the issuance of the licences until the court ruling is delivered.
The move followed three petitions by Green Politics Group coordinator Suriyasai Katasila, the TOT labour union and senator Paiboon Nititawan.
Ombudsman Office spokesman Raksagecha Chaechai said the office will ask the Administrative Court to consider whether the auction was conducted in a free and fair manner under Section 47 of the constitution and the Frequency Allocation Act of 2010, which say the distribution of frequencies must maximise benefits to the public and be carried out with public participation.
He said the ombudsman members agreed the auction failed to generate genuine price competition because two companies did not increase their bids. The office will therefore ask the court to order the NBTC to annul the auction.
NBTC commissioner Suthipol Taweechaikarn insisted the regulator had followed every process required by the law for the distribution of the 3G spectrum including conducting public hearings.
"We are confident we can clarify the matter to the Administrative Court if it accepts the case. We have prepared our defence for every aspect," he said.
Col Settapong Malisuwan, chairman of the NBTC's telecom committee, said the commission will follow the court order if a ruling is made.
He said the NBTC will have to immediately cease issuing the licences to the auction winners if the court decides to grant an injunction.
"On the other hand, if the court rules in favour of us, we will quickly move ahead to issue the 3G licences within 90 days, or Jan 18 next year, to comply with the 3G's information memorandum condition," he said.
Mr Somprasong, meanwhile, believes last month's auction complied with the laws, especially the Frequency Allocation Act, and that there was no collusion among the bidders.
"All we've heard are allegations. There is no real evidence showing even the possibility of collusion," said Mr Somprasong.
He said that to be fair to telecom operators, once the 3G's information memorandum is published in the Royal Gazette, the NBTC must proceed to issue the the licences or face legal challenges.
Mr Somprasong expressed doubt about the motives of several groups opposed to the auction. He said the NBTC had allowed public input about the auction on its website for months beforehand.
As well, the Senate's good governance committee on Oct 25 called on the bidders to provide information for its investigation into whether the auction really was designed to generate fair and genuine competition.
But the day before that, the committee filed a petition against the NBTC with the National Anti-Corruption Commission over alleged price collusion and possible illegal auctioning procedures. "Was this a biased judgement?" asked Mr Somprasong.
Mr Athueck said the NBTC needs to issue the 3G licences to restore public confidence in its credibility.
It is now preparing to move ahead with other auctions, including for digital TV and radio frequencies; the 1800-MHz spectrum being used by True Move and AIS subsidiary Digital Phone and on which 4G could be developed; and the 900-MHz spectrum being used by AIS.
"Annulling the 3G auction results would have a domino effect on all future planned auctions as well as Thailand's telecommunications industry," Mr Athueck said.
Suwichak Nagavajara, secretary-general of the House and chairman of a probe panel into the 3G bidders, said his committee will not be able to finish its work by tomorrow's deadline because it still has to talk to a large number of people. It will ask that the deadline be extended to the middle of December.
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Writer: Komsan Tortermvasana, Srisamorn Phoosuphanusorn & Mongkol Bangprapa