Some commissioners on the National Broadcasting and Telecommunications Commission (NBTC) have sent signals to Advanced Info Service (AIS) to withdraw its lawsuit against the NBTC board's resolution last year acknowledging the merger of True Corporation and Total Access Communication (DTAC), says an NBTC source who requested anonymity.
The source said these commissioners believe the lawsuit might cause difficulties for the board when it considers the ongoing takeover deal of fixed broadband service 3BB by AIS.
The board will consider the AIS deal by referring to the same 2018 regulations on which it based its decision regarding the True-DTAC deal.
NBTC board chairman Dr Sarana Boonbaichaiyapruck said AIS's lawsuit against the NBTC's resolution on the True-DTAC merger might imply that AIS disagrees with procedures under the 2018 regulations, which are the same guidelines to be used for consideration of the AIS-3BB deal.
On Oct 20, 2022, the NBTC board voted 3-2 to take the position it has no authority to consider approving or rejecting the planned True-DTAC merger, which in essence allows the amalgamation.
The board simply acknowledged the planned merger and issued consumer remedy measures by citing the 2018 regulations, which state the NBTC can only govern mergers, not approve or reject them.
As a result, in November last year AIS petitioned the Central Administrative Court to revoke the NBTC's resolution, noting it conflicts with the past frequency licence auction's conditions that prohibit mobile operators from holding a combined spectrum bandwidth on several ranges that exceed the NBTC's spectrum cap rule.
The AIS lawsuit claims the resolution sided with the True-DTAC merger deal and the NBTC board failed to exercise its power and accountability to govern using all related regulations.
True and DTAC completed the merger in March to become True Corporation.
A management source at AIS who requested anonymity told the Bangkok Post it is impossible for the company to withdraw the lawsuit as the management and a legal advisor strongly believe in the legal grounds against the NBTC board's resolution.
The source said the takeover deal of 3BB by AIS differs from a merger.
AIS has already asked the NBTC to consider either approving or rejecting the deal.
"Both AIS and 3BB proposed the acquisition deal to the NBTC for approval. The regulator can consider whether to approve or reject it," the source said.
Prawit Leesathapornwongsa, a former NBTC commissioner, said he cannot see how the AIS lawsuit would affect the regulator's consideration of the 3BB takeover.
The True-DTAC merger deal and the takeover deal of 3BB by AIS are two separate matters, he said.
Mr Prawit said the AIS lawsuit is directed at the regulator's position that it has no authority to approve or reject the merger.
True and DTAC jointly submitted a report of their amalgamation procedure to the telecom regulator on Jan 25, 2022.
Opponents of the merger claimed the NBTC has a responsibility to prevent monopoly or unfair competition in the telecom sector, according to its 2006 regulation.
The regulation stipulates the NBTC has the power and duty to prescribe measures to prevent monopoly or unfair competition in the broadcasting and telecom sectors.
Citing this regulation, critics of the merger argue the NBTC has the legal power to prohibit any mergers or acquisitions of two companies if they are projected to lead to monopoly or unfair competition.
Last year NBTC management insisted the board has no direct legal power to prohibit mergers or acquisitions, only the authority to impose specific measures to prevent monopoly or unfair competition.
According to NBTC management, though the regulations that took effect in 2010 empower the NBTC board to determine whether to allow or reject a merger deal, they were replaced by 2018 regulations.
The NBTC board already approved in principle guidelines for the purchase of fixed broadband service 3BB by AIS, and its investment in Jasmine Broadband Internet Infrastructure Fund. The owner of 3BB is Triple T Broadband. The guidelines were proposed by NBTC management.
The NBTC office was assigned to set up four subcommittees to verify the details and conditions of these two deals and propose them for the board's consideration again. Dr Sarana estimated the panels will conclude their work before the end of 2023.