REPORT: Why Article 44 rode to DIGITAL TV’S RESCUE

SERIOUS questions being asked about the handling of telecommunications frequencies hint that there is a deeper context to the decision by seven TV broadcasters to surrender their licences. To many observers, it no longer appears to be a simple matter of businesses abandoning ventures that failed to earn a profit. 
The National Council for Peace and Order – the military junta – invoked Article 44 of the interim constitution to enable the seven broadcasters to return their licences to the National Broadcasting and Telecommunications Commission (NBTC).
Observers have since begun questioning the background of the matter and surmising that telecommunication signals continue to be regulated under the “state-capital patronage” system – at great cost to the public interest.
Critics have said the manner in which the state has agreed to accept the returned licences could send the process of media reform back to square one.

The government in 2013 initiated a full, market-driven business model for television operations and invited bids for licences, setting aside the prior practice of signing concession contracts.
There was keen competition among broadcasters for licences covering the 700-megahertz spectrum, from 510-790MHz, which had room for nearly 50 channels, and interest among mobile phone operators in the 900MHz spectrum.
Ultimately 24 TV firms purchased licences.
The ensuing fierce competition for viewers, unexpected technological disruption and inadequate state infrastructure resulted in financial losses at some channels within years, however. 
Operators began lobbying for state relief and some was granted, but not enough. Finally Prime Minister Prayut Chan-o-cha, in his capacity as junta chief, used Article 44 in mid-April to bail out the troubled broadcasters.
The suggestion was made at a seminar, “Article 44 and TV Digital, What has the public got?”, organised by Thammasat University’s faculties of law and sociology and anthropology, that the failure of digital TV was deliberate and linked to both the telecommunications sector and ambitions to embrace 5G technology.
It was noted that Article 44 enabled operators to return their licences without having to pay fees still due and also compelled the NBTC to cover their broadcasting rental fees. In total, the cost to the taxpayer is estimated to top Bt30 billion.
A portion of the 700MHz spectrum (694-790MHz) also becomes available for future telecommunications firms interested in bidding, while the three biggest existing mobile-phone operators have been “invited” to bid as a condition for postponing their licence fees in the 900MHz spectrum.
Dr Somkiat Tangkijvanich, president of the Thailand Development Research Institute, dismissed claims that the arrangement was intended to facilitate 5G technology and compensate digital TV operators. 
Such claims were untrue, like “a series of tales or novels”, he said.
“Simply put, it’s the story of Loong [Uncle, referring to Prayut] ordering Big Brother to carry Sia [a rich businessman] with the people’s money,” Somkiat said.
Somkiat argued that it is only partially true to say digital TV is doomed without public financing, since not every operator failed in its investment and several have no need of state support. 
Only media personnel whose jobs are threatened by the shutting down of operations or by technological disruption deserve help, he said.
Nor is it true at present that Thailand must urgently embrace 5G, Somkiat pointed. 

Such technology is beneficial to the few countries with massive existing supporting technology and infrastructure, such as China and South Korea. 
There is no hurry in countries lacking the supporting technology and, for Thailand, 4G is ample to meet the public’s needs, he said.
The NBTC, he added, has not yet even produced a plan to support 5G.
Further more, the argument that 5G bidding should proceed now to generate money to compensate digital TV operators was like “a dark joke”. That amount of money – up to Bt100 billion, he estimated – could come from postponing the operators’ payment of licence fees.
Somkiat scoffed at the idea of seizing the 700MHz spectrum from the broadcasters to introduce 5G. The spectrum is so vast, he said, that even if the 694-790MHz segment is tagged for 5G as envisioned, ample space remains in the 510-694MHz range to run digital TV without any need to compensate firms.
He called into question the logic behind suspicions over why Article 44 came into play. Broadcasters have been requesting state aid for years, he noted, and the outcome affects both the taxpayer and the future telecommunications market.
Apart from the Bt30-billion cost to the taxpayer, Somkiat said, there are other direct and indirect impacts on consumers, on top of the poor example set by the state intervening in private business.

The broadcasting firms, he said, should be shouldering all the risks and a state bailout could both distort the market and breach the rule of law.
“All of this demonstrates that the claims are just novels or tales, and the novels and tales aren’t funny or intelligent at all,” Somkiat said.
Former NBTC commissioner Supinya Klangnarong said the situation stems from the entrenched “state-capital patronage system” that dates back to the advent of television in Thailand, shortly after the 1932 revolution. 
And it comes despite attempts to reform the media in the 1997 “people’s constitution”, she said.
The NBTC has the authority to amend the rules in response to market shifts and technological disruption, Supinya said. It was intended from the start to pursue media reform as an independent regulatory agency, not to be directed by Article 44, which represents absolute power without checks or balances.
There is widespread speculation about the digital TV compensation, and yet the NBTC has thus far offered no formal explanation, she said.
In the meantime, given current conditions, more and more media outlets could fall into the hands of big corporations and be vulnerable to political influence, Supinya said.

The result is the reverse of media reform, which the introduction of 5G will only make more critical since 5G can penetrate every aspect of our daily lives, including the right to free expression and access to free media.
Kannikar Kijtiwatchakul, an adviser to the Foundation for Consumers, said the public was the big loser in the use of Article 44, both in terms of tax money and benefits derived from free media.
NBTC Commissioner Dr Prawit Leesathapornwongsa noted the loss of programming for children and families due to the licences being returned and channels abandoned. More than half of on-air news content has also disappeared, he said.
And the Foundation for Consumers has monitored more and more of quality of the content dropping down, with advertising flooding the channels, eroding people’s access to news and other information.
“It’s what I would call the ‘dirty money-state’ regime, which has left its people behind with nothing but loss while drugging our media,” said Kannikar.
Panellists expressed hope that the matter will be raised for debate in Parliament.

Thanathorn Juangroongruangkit, leader of the Future Forward Party who also shared the panel vowed to push for abandoning the “state-capital patronage system”, which he sees the absence of democracy as sustaining.