The Supreme Administrative Court's decision to overrule the Central Administrative Court's dismissal of a consumer group's complaint against the regulator's resolution on the merger of True Corporation and Total Access Communication (DTAC) is not expected to affect the proposed takeover of Triple T Broadband (TTTBB) by Advanced Info Service (AIS).
The National Broadcasting and Telecommunications Commission (NBTC) board is slated to consider the AIS-TTTBB deal on Nov 10.
The Foundation for Consumers filed the complaint with the Central Administrative Court on March 8, seeking a court order to scrap the NBTC's resolution regarding the merger of True and DTAC.
However, the court dismissed the complaint, ruling the filing exceeded the legal prescription period. According to administrative court law, a filing must be lodged within 90 days of the publication of the NBTC's resolution.
The foundation appealed to the Supreme Administrative Court, which overturned the lower court's ruling on Monday. It also ordered the lower court to accept the case for consideration.
The upper court noted in its opinion that telecom is a basic service that affects daily life. The industry requires massive investment and has a small number of players. The merger of telecom operators could have an impact on market competition.
Therefore, the lower court has the authority to accept the case for consideration, given the filing has direct benefits for the public.
Prawit Leesathapornwongsa, an advisor to NBTC commissioner Pirongrong Ramasoota, said the case refers to the NBTC's resolution on Oct 5, 2022 that it has no authority to approve or disapprove the True-DTAC merger. The resolution acknowledged the deal and issued remedy measures.
The NBTC board, which at the time comprised only five commissioners, passed the resolution with a 3-2 vote.
While the Foundation for Consumers filed the complaint on March 8, the foundation appealed to the Supreme Administrative Court that the deadline to file the complaint should count from when the NBTC office formally released the board's resolution on its website, not from the date the resolution was reported by the media.
As the NBTC office released the resolution last December, the foundation's complaint should be considered within the filing prescription time frame, as specified by the law, said the foundation.
Consumer advocates protested at the National Broadcasting and Telecommunications Commission's head office on October 20, 2022. They demanded that the NBTC reject the True Corporation and Total Access Communication (DTAC) merger deal. (Photo: Apichart Jinakul)
DIFFERENT DEALS
Mr Prawit said he believes the Supreme Administrative Court's decision on the appeal will not have any effect on the NBTC board's meeting on Nov 10 to consider the AIS-TTTBB takeover as the two deals are clearly different.
He said the True-DTAC merger deal involved regulations concerning the criteria and measures for supervising mergers and acquisitions in effect since 2018. These replaced the 2010 regulations.
The 2018 regulations stipulate that the licensee is prohibited from any act that monopolises or reduces or restricts competition in the telecom sector. Under the regulations, the NBTC board has the authority to impose specific measures to prevent licensees from creating a monopoly or reducing or limiting competition in the telecom industry.
However, the regulations cover the businesses on the basis of civil law and do not contain any clauses referring to companies that are subject to public law.
The foundation's complaint referred to this legal point that the NBTC board should not have considered the True-DTAC merger proposal from the start as the merger of public companies is not subject to the NBTC's 2018 regulations concerning mergers and acquisitions.
Prior to the merger, True and DTAC were SET-listed companies and ran their operations via the Stock Exchange of Thailand's requirements and practices in line with public companies. They were delisted to complete the merger and the merged entity later listed as True Corporation.
On the contrary, Mr Prawit said the proposed takeover of 3BB by AIS directly involves the NBTC's regulations in effect since 2006. These supervise the takeover of businesses or assets in the telecom sector. The regulations stipulate such deals require the NBTC's approval.
AIS and 3BB submitted the joint proposal to the NBTC directly, seeking approval from the NBTC board, not about being considered under the 2018 regulations.
A source at the NBTC board, who requested anonymity, said the majority of the board at the Nov 10 meeting are likely to ask to vote to clarify whether the board has the authority to approve or disapprove the AIS deal, before considering details of the deal.
The source said four commissioners out of seven always share the same opinions, including Mrs Pirongrong, Suphat Suphachalasai, AM Thanapant Raichareon and Sompob Purivikraipong.
Recently, NBTC chairman Dr Sarana Boonbaichaipruck said the board has no authority to approve or disapprove the AIS deal but just to acknowledge the deal and issue remedies like the resolution for the True-DTAC merger.
On the contrary, Mr Suphat recently said he believes the board has the authority to give its approval or disapproval for the deal.
A sign 'Better Together' is displayed at a press conference held for the True Corporation and Total Access Communication (DTAC) merger. (Photo: Varuth Hirunyatheb)
NO EFFECT
In a related matter, True insisted the decision by the Supreme Administrative Court will not affect its merger with DTAC, according to a statement from True on Tuesday.
True said the merger was carried out in complete compliance with the related laws. The merger also benefits subscribers of True and DTAC and the entire telecom sector.