Regulator’s decision to allow True-Dtac merger skirted the law, professor says
The telecom regulator’s controversial vote last October that effectively gave the green light for the merger of two of Thailand’s three major mobile operators – True Corporation and Total Access Communication (Dtac) – failed to comply with the law, a legal expert said on Saturday.
Assoc Prof Narongdech Srukhosit, a lecturer at Chulalongkorn University’s Faculty of Law, said there were “procedural improprieties” in the minutes of the October 20 National Broadcasting and Telecommunication Commission (NBTC) meeting on the merger.
The commission released the minutes of the meeting on December 9 – the same day the Central Administrative Court rejected a petition by the Thailand Consumers Council seeking an injunction against the planned merger.
Narongdech pointed out that before making its decision, the NBTC board failed to take into account all the relevant information, including recommendations by their independent advisers and expert opinion.
The regulator made the decision with insufficient facts and information, the professor wrote in a detailed legal analysis published by Thai-language media on Saturday.
The NBTC decision to “acknowledge” the proposed business merger between True and Dtac was not legally binding because the vote count failed to comply with a rule set by the Council of State, the government’s legal advisory agency, as well as Supreme Court verdicts, he said.
The five NBTC commissioners voted 3-2 to take the position that it had no authority over the deal between True and Dtac, which effectively gave a green light to their merger. The result came after the NBTC chairman’s vote was counted as two. He and another commissioner voted for the decision, two others against it, and the fifth commissioner abstained.
Despite the chairman’s double vote, the five commissioners failed to reach a majority of three votes, Narongdech said.
He said that according to NBTC meeting regulations, the chairman can only cast a deciding vote if the commissioners are split evenly. As an example, he cited an NBTC meeting in May 2020, when the agency had more commissioners. Two sides were split at three votes each before the chairman cast the deciding vote.
“This way, such a special vote by the chairman will result in the decision being legally binding,” Narongdech said.
Clearly, the resolution failed to get approval from at least half of the existing NBTC commissioners, he said.
“The chairman has the power to make the deciding vote, but the resolution was endorsed by two out of five commissioners, which is less than half. So, the NBTC resolution is not legally binding,” Narongdech concluded.
