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The Operation of Telecommunications Business Act B.E. 2544 (2001)

 

Bhumibhol Adulyadej, Rex.

Given this 9th day of November B.E. 2544

Being the 56th Year of the Present Reign

 

His Majesty King Bhumibhol Adulyadej has been graciously pleased to proclaim that,

Whereas it is expedient to enact a law on the operation of telecommunications business.

This Act contains certain provisions relating to the restrictions of the rights and liberties of individuals, in respect of which Section 29, together with Section 34, Section 37, Section 39, Section 48 and Section 50 of the Constitution of the Kingdom of Thailand, provides that such restrictions may be permitted by virtue of the provisions of the law.

Be it, therefore, enacted an Act, with the advice and consent of the National Assembly, as follows:

 

Section 1.

This Act shall be called “The Operation of Telecommunications Business Act B.E. 2544”

Section 2.

This Act shall come into force on the date following the date of its publication in the Government Gazette.

Section 3.

The following acts shall be repealed:

(1) The Telegraph and Telephone Act 1934; and

(2) The Telegraph and Telephone Act (No. 2) 1974.

Section 4.

In this Act:

“telecommunications business” means the telecommunications business in accordance with the Organization of Frequency Allocation and Supervision of Radio Broadcasting, Television and Telecommunications Businesses Act.

“telecommunications operation” means an operation of business as provider of the telecommunication services to the people in general;

“telecommunication number” means the figures, alphabets or any other one or many symbols jointly used for locating the position in the telecommunications network for telecommunications purposes;

“telecommunications network” means the cluster of telecommunications equipment connected directly or through the exchange or any other equipment for telecommunications between the destination determined by the wire system, frequency system, other electrical magnetic system, either one or many system collectively;

“connection” means the connection of the telecommunications networks according to the technical and commercial agreement in order for one party of the telecommunications to be able to communicate with the service users or to use the telecommunications services of another party;

“Commission” means the National Telecommunications Commission according to the Organization of Frequency Allocation and Supervision of Radio Broadcasting, Television and Telecommunications Business Act;

“Office” means the Office of the National Telecommunications Commission;

“Secretary-General” means the Secretary-General of the National Telecommunications Commission;

“competent officer” means the persons appointed by the National Telecommunications Commission to carry out the execution of this Act by means of a publication in the Government Gazette.

Section 5.

The Prime Minister shall have charge and control over the execution of this Act.

Section 6.

The Commission shall have authorities to appoint competent officers and issue other notifications on other matters for the implementation of this Act.

This Act shall be enforced after its publication in the Government Gazette.

 

Chapter 1

Granting License to Operate Telecommunications Business

 

Section 7.

Any person wishing to operate telecommunications business according to the nature and types prescribed by the Commission according to the Organization of Frequency Allocation and Supervision of Radio Broadcasting, Television and Telecommunications Business Act must receive a license from the Commission.

There are three categories of the licenses for operating telecommunication businesses as follows:

(1) First category license, namely, the license for the telecommunications business operators who have no telecommunications network of their own and their business has the nature deemed appropriate to provide services freely. Upon having notified the Commission by the persons wishing to operate the said business, the Commission shall issue the license for operating such business.

(2) Second category license, namely, the license for telecommunications business operators who have or do not have the telecommunications network of their own and their business operation has an objective to provide services to specific group of persons or their business operation has no significant effect on free and fair competition or on public interest and on the consumers. Accordingly, upon having complied with standard rules prescribed by the Commission in a complete manner in advance by the person wishing to operate such business, the Commission shall issue the license for operating such business.

(3) Third category license, namely, the license for the telecommunications business operators who have the telecommunications network of their own and their business has an objective to provide services to the public in general, which is a great number of persons or their business has significant effect on the free and fair competition or the public interest, or there is a necessary cause to protect the consumers on a special basis. The person wishing to operate such business shall do so upon having been considered by the Commission and a license is deemed appropriate to be granted.

Whether the persons receiving the first, second or third category license can have the right to operate telecommunications of any nature or type and to what scope of service provision shall be up to the notification of the Commission, which must be in accordance with the nature of business operation according to each category of licenses specified under the second paragraph. Also, the development of diversified telecommunications service provision shall be taken into account including fairness among business operators.

In applying for a license, the applicant must specify which category of a license such application is for together with the nature or type of telecommunications business wished to be operated. If the applicant wishes to operate the business of other nature or types after receiving a license, the Commission must be notified before commencing the business. In such case, the Commission shall prescribe the conditions to be performed by the applicant.

Section 8.

The Commission shall prescribe the rules for granting a license openly on a general basis in order for the persons wishing to operate the business to know in advance about the qualifications of the applicant for a license, the procedures for applying for a license and the criteria for issuing a license. The criteria shall be prescribed differently according to the type of a license under Section 7 and must be in accordance with each nature and type of telecommunications businesses. Also, it must be in accordance with the guidelines for granting a license to use the frequencies and a license to operate telecommunications business specified in the master plan for the telecommunications business and radio frequency plan according to the Organization of Frequency Allocation and Supervision of Radio Broadcasting, Television and Telecommunications Businesses Act.

In the notification under the first paragraph, the Commission shall prescribe the details on the qualifications of the applicants, procedures for applying for the license, documentary evidence or information necessary for use in granting a license, procedures for consideration and issuance of a license, duration for consideration to grant a license by the Commission, scope of business operation permitted, maximum and minimum timeframe permitted to operate the business as well as other conditions necessary for business operation.

The qualifications of a person applying for a license must be as follows:

(1) The applicant for the second category license and the third category license must not be a foreigner according to the Alien Business Act and there shall be a proportion of shareholding of Thai nationals of not less than 75% of all the capital of such juristic person. In addition, not less than three-fourth directors and the persons with power to act to bind such juristic person must be Thai nationals. For such purposes, the Commission may require that the applicant for a license to operate certain type or nature of business, which is a juristic person, prescribe prohibitions against any other act qualified as a business takeover by persons who are non-Thai nationals.

(2) The applicant must not be bankrupt.

(3) The applicant must not be a person whose license used to be revoked.

(4) The directors, managers or the persons with equivalent power as the managers of the applicant must not be the persons who have been judged by a final court decision as committing an offence under this Act or the law governing telegraph and telephone, the law governing the telecommunications radio or the law governing the consumer protection within the preceding 2 years before submitting the application for a license.

(5) The applicant for the third category license shall have an investment plan and a plan to provide telecommunications services, which can provide services efficiently.

(6) The applicant must be qualified and possess no other prohibited characteristics prescribed by the Commission for applying for each type of a license under Section 7.

Section 9.

The telecommunications business operation under the third category license shall be for the duration as prescribed in the license, which must be according to the maximum and minimum timeframe as prescribed by the Commission.

The licensee shall apply for a renewal of the third category license prior to the expiry date of such license. Upon submission of an application for a renewal, it shall be deemed that the licensee is able to carry on the telecommunications business until the application for the renewal has been rejected, provided that the Commission must consider and notify the applicant within thirty days from the submission date of the application.

The submission of the application and the granting of the renewal of the license shall be in accordance with the rules, procedures and conditions prescribed by the Commission, which must be in accordance with the rules under Section 8 as well.

The prescription of the duration for granting a license and the renewal of the license shall be made by the Commission by taking into account the duration under the investment plan, the scope of service provision, guidelines for business development of the applicant, continual consumer protection and result of assessment of business operation.

The telecommunications business operation under the first or second category license shall continue throughout the service providing period. However, if the licensee wishes to dissolve the business, the Commission must be notified not less than one month in advance. The Commission may prescribe conditions to be performed by the licensee before the dissolution of the business.

Section 10.

In applying for a license to operate telecommunications business, if such telecommunications business shall use the frequency, the applicant must also be granted permission to use the frequency according to the Organization of Frequency Allocation and Supervision of Radio Broadcasting, Television and Telecommunications Businesses Act.

In the case where the licensee’s license to use any frequency has been revoked, such licensee’s license on part relating to the use of such frequency shall be deemed being revoked as well.

Section 11.

The licensee shall pay the fees for using frequency, the fees for the telecommunication numbers and the fees for the license to operate business according to the rate, rules and procedures prescribed by the Commission, provided that they shall not cause unreasonable burden to the operators or the service users.

In determining the rates and rules for fees for use of frequency and the fees for telecommunication numbers, the Commission shall take into account the public interest, worthiness, shortage and procedures for allocating such resources.

In determining the rates and rules for the license fee for operating telecommunications business, the Commission shall take into account the format of the license and the expenses for the supervision of the telecommunications business operation arising from the performing of duties under this Act.

Section 12.

For the issue of a license for the telecommunication business which uses telecommunication numbers as specified in the telecommunication number plan, the Commission shall prescribe the telecommunication numbers for used in providing services or in the service providing area for the operation of telecommunications business of the licensee as well.

The licensee shall provide services of telecommunication numbers to the general public with only the telecommunication numbers permitted by the Commission.

In the case where it appears that the licensee has not provided services of the telecommunication numbers as has been granted without reasonable ground, or provided services of numbers which have not been permitted, the Commission shall have the power to order the licensee to act according to the license or suspend the use of such telecommunication numbers, whereby the licensee shall not claim for any damages.

In order to protect the interest of the service users and when there is technical readiness, the Commission shall prescribe the guidelines and rules for the service users to use the existing telecommunication numbers when the service users want to change the service provider, place or type of services, provided that the Commission arrange for a public hearing of relevant licensees.

Subject to the measures prescribed by the Commission in accordance with Section 50, paragraph one, the licensee shall have the duties to give information on the service users of the telecommunication numbers to the persons requesting the information for preparing the directory of the service users, whereby the expenses shall be charged only for the preparation of the information.

Section 13.

For the purpose of determining the telecommunication numbers for use by the licensee in providing services, the Commission, in making a plan on the telecommunication numbers according to the Organization of Frequency Allocation and Supervision of Radio Broadcasting, Television and Telecommunications

Businesses Act, shall take into account the following rules:

(1) there shall be sufficient telecommunication numbers for providing services;

(2) the telecommunication numbers shall be used efficiently and fairly;

(3) the telecommunication number plan must help make the division of nature and types of services and equipment used in the telecommunications business easier and clear;

(4) the amendment to the telecommunication number plan can be made only in especially necessary cases.

In the case where the Commission prescribes the telecommunication number plan, or amends the plan either in whole or in part, the licensee shall have the duty to comply with the rules prescribed by the Commission.

Section 14.

In the case where the licensee wishes to expand the provision of services by increasing the telecommunication numbers for use in providing services or expanding the area for providing services, an application shall be submitted to the Commission.

In the case where the Commission is of the opinion that the increase of the telecommunication numbers or the expansion of the service area will be beneficial to the public and has no characteristic of restricting fair competition of the telecommunications business operation, the Commission may consider granting permission to the licensee to operate in accordance with the rules and conditions prescribed by the Commission. For such purposes, the Commission shall consider and notify the licensee within thirty days from the receiving date of the application.

In granting such permission, the Commission shall collect additional fees for operating the permitted part of the telecommunications business according to the rules prescribed by the Commission.

Section 15.

In operating the telecommunications business, the licensee shall comply with the rules prescribed in the Organization of Frequency Allocation and Supervision of Radio Broadcasting, Television and Telecommunications Businesses Act and the conditions prescribed by the Commission.

In prescribing the conditions for granting permission, the Commission shall prescribe clearly the rights, duties and responsibilities especially those of the licensee including the plan to provide telecommunication services of the licensee with at least the steps and period for commencing the service provision, details of the nature or type of services, rates of service fees, services in connection with the notification on service users of telecommunication numbers and other matters necessary for providing services for public interest.

In the case of important grounds for protecting public interest, or the laws or circumstances have changed, the Commission shall have the power to amend the conditions for granting permission as deemed necessary.

Section 16.

In the case where the licensee has received the permission to operate the business according to the telecommunication numbers or the area as prescribed, if it appeared to the Commission that the licensee has not provided services according to the telecommunication service provision plan as prescribed to be conditions in granting permission according to Section 15 with unreasonable grounds, and the Commission is of the opinion that it has effect on the public interest, the Commission shall have the power to withdraw the telecommunication numbers according to the prescribed numbers or reduce the areas of service from what has been granted, whereby the licensee shall not claim for any damages.

Section 17.

The Commission shall have the duty to provide basic telecommunication services in an extensive manner and shall have the power to require the licensee to provide the following telecommunication services:

(1) the telecommunication services in provincial areas or the areas where the return for the investment is low or any other areas where there is no service provider, or there are service providers which cannot provide sufficient services for service users in such area;

(2) the telecommunication services for educational institutions, religious places, medical centers and other agencies providing assistance to the society;

(3) the public telecommunication services of certain nature or type as prescribed by the Commission to the low income people;

(4) the services to facilitate the use of public telecommunication services for the disabled, children, the aged and the under privileged in the society.

The rules, procedures and conditions for providing telecommunication services by the licensee under paragraph one shall be as prescribed by the Commission.

The Commission shall arrange for the notification under the second paragraph in advance in order for the persons wishing to apply for a license to know the scope of the provision of telecommunication services under the first paragraph before submitting the application for a license.

The requirement that the licensee provide telecommunication services under this Section must not cause inappropriate burden to the investment of the licensee, and it shall apply equally to the licensees who operate telecommunication businesses of the same nature and type.

Section 18.

In the case where any licensee cannot provide telecommunications services as prescribed by the Commission under Section 17, or in an appropriate case where the licensees should participate in the responsibilities in providing basic telecommunications services on an extensive basis, the Commission shall have the power to require that such licensee allot the income from providing telecommunications services to the fund for developing the telecommunications businesses for public interest according the Organization of Frequency Allocation and Supervision of Radio Broadcasting, Television and Telecommunications Businesses Act. Such fund shall be used for providing telecommunications services according to Section 17.

Section 19.

The Commission shall have the power to prescribe any measure to support and promote new licensees to have an opportunity to provide telecommunications services in any area in order to be able to compete with other licensees efficiently, equally and fairly.

Section 20.

The licensee shall not suspend or end the provision of services, either in whole or in part unless permission has been granted by the Commission according to the rules and procedures prescribed by the Commission.

The licensee shall not refuse to provide services to any person without reasonable grounds.

Section 21

The operation of the telecommunications business besides being subject to the trade competition law, the National Telecommunications Commission shall also set out specific measures consistent with the nature of the operation of the telecommunications business to bar the licensee from carrying out any acts that are monopolizing or reducing or restricting competition in relation to providing telecommunications services in respect of the following matters:

(1) granting subsidies to the service;

(2) holding the same type of service business;

(3) exercising unfair market influence;

(4) anti-competition behavior;

(5) protecting small operators.

Section 22

The licensee must report to the Secretary General for information without delay upon occurrence of the following circumstances:

(1) the licensee has been substantially damaged to the extent that it may create difficulties in the course of providing telecommunications services;

(2) the licensee shall operate other telecommunications business than the licensed business;

(3) the licensee shall enter into an agreement granting the power, either in whole or in part, to other persons to administer the operation of the licensee;

(4) the licensee has acted or been acted upon with the characteristic of a business takeover or being taken over under the securities and exchange law;

(5) occurrence of any events, which shall affect or may have affected the operation of the business or the provision of services by the licensee as shall be determined by the Commission.

For the purpose of reporting pursuant to (2) and (3), the licensee must prepare such report prior to operation. For the events under (1) (4) and (5), the report must be made immediately upon the occurrence of the said events.

Upon receipt of the report pursuant to paragraph two by the Secretary-General, the matter shall be proposed to the Commission as soon as possible. For this purpose the Commission shall have power to set out the terms and conditions for the licensee to implement to prevent damage to the public interests.

Section 23

The Commission may require the licensee to arrange for the data recording system in respect of evidence on the use of telecommunications services by the service users for inspection by the service vice users.

Section 24

In the event where certain characteristics or categories of the telecommunications business are involved with specific technology to which the provisions of this Chapter shall not be applicable in order to be consistent with the operation of such telecommunications business, the Commission shall have the power to prescribe conditions for the operation of the telecommunications business of such characteristics and categories.

The conditions prescribed pursuant to paragraph one shall be in accordance with the announcement of the Commission.

 

Chapter 2

The Use and the Connection of Telecommunication Networks

 

Section 25

The licensee who possesses telecommunications networks shall have the duty to allow other licensees to connect their telecommunications networks to its own telecommunication networks according to the rules and procedures prescribed by the

Commission.

The licensee who possesses telecommunications networks must allow other licensees to use its own telecommunications networks according to the rules and procedures prescribed by the Commission.

Refusal to allow the use of telecommunications networks may be done in the following events:

(1) the existing telecommunications networks are not sufficient for use by other licensees;

(2) there are technical problems in using the telecommunications networks which may cause interference in the telecommunications business or obstruction to telecommunications;

(3) other cases as may be prescribed by the Commission;

The licensee possessing telecommunications networks who refuses to allow the use of telecommunications networks pursuant to paragraph three shall have the duty to provide proof of the grounds for such refusal.

The collection of consideration for the use of or the connection to telecommunications networks must be reasonable and fair to the licensee who possesses telecommunications networks and to every applicant for use of or connection to telecommunications networks. The collection of the consideration must also be on an equitable basis among the applicants for use of or connection to telecommunications networks.

For the provision of rules and procedures under paragraph one and paragraph two, the Commission shall arrange for a hearing of opinion from the licensees concerned.

Section 26

In the event of a refusal against the use of telecommunications networks or there are disagreed issues in negotiating a contract for the use of or the connection to the telecommunications networks, the parties shall be entitled to request the Commission to consider and make a decision according to the rules and procedures prescribed by the Commission. The decision of the Commission shall be final.

During the process of consideration by the Commission according to paragraph one, if it is deemed necessary, the Commission may order that the telecommunications networks be used or connected on a temporary basis according to the rules and procedures as the Commission shall determine.

Section 27

A contract relating to the use of or the connection to the telecommunications networks shall contain the following terms and conditions:

(1) it shall not cause a loss of interests of the service users;

(2) it shall not be discriminating, dividing or prejudicial to other licensees;

(3) the technical requirements at the point of use or connection to the telecommunications networks must be clear, technically feasible and not causing inappropriate burden to the applicants for use of or for connection to telecommunications networks;

(4) the duties and responsibilities of the applicants for use of or for connection to the telecommunications networks or the providers of use of or connection to the telecommunications network must be clearly specified;

(5) the rates of consideration for use of or for connection to the telecommunications networks must be determined in accordance with the rules under Section 25, paragraph five;

(6) other characteristics as prescribed by the Commission.

The licensee who is the owner of telecommunications networks must furnish a copy of the contract to the Commission within ten days of the execution date of the contract. If the Commission is of the opinion that the terms and conditions in the contract are inconsistent with the characteristics in paragraph one, the Commission shall have the power to order that the amendment be made within the specified timeframe. If the licensee who is the owner of telecommunications networks refuses to make amendment to the contract in accordance with the requirements prescribed by the Commission, the provisions of Section 65 shall apply mutatis mutandis.

However, if the applicant for use of or for connection to the telecommunications networks is the person who refuses to make such amendment to the contract, such contract shall be deemed as being void.

Section 28

The licensee shall provide correct and necessary information regarding the use of or the connection to telecommunications networks to other licensees who are applicants for use of or for connection to the telecommunications networks. The licensee shall not do any act which may cause disruption to normal operation of the use of or the connection to telecommunications networks of other licensees.

When there is an amendment to the telecommunications network which has effect on the use of or the connection to telecommunications networks, the licensee who has telecommunications networks shall give advance notification of such amendment within reasonable period of time, but not less than six months.

Section 29

The licensee who is the owner of telecommunications networks must disclose the contract for the use of or the connection to telecommunications networks on a general basis according to the procedures prescribed by the Commission.

Section 30

In case of change in economic and social condition or any occurrence causing improper consideration for the use of or the connection to telecommunications networks specified in the contract to the extent that advantage or disadvantage has been incurred among licenses, which causes inappropriate burden to either party, the licensee who is the party to the contract may request for an approval from the Commission to adjust the rate of the consideration. In granting approval, the Commission shall also take into account the effects on the service users.

Section 31

For the purpose of maintaining national security or for the prevention of possible disaster to the public in general or for the benefits of the public in general, upon request from the Government to the Commission, the Commission shall act to ensure that there is the use of and the connection to telecommunications networks between the licensees and relevant Government agencies. In such case, the licensee shall have the duty to comply with the order of the Commission.

 

Chapter 3

Telecommunications and Equipment Standards

 

Section 32

The Commission shall have the power to prescribe that the types of the telecommunications networks, telecommunications equipment or accessories used in telecommunications business which have effects on the provision of telecommunications services have specified technical standards.

The Commission may also issue a notification requiring the equipment used in telecommunications networks, telecommunications equipment or accessories used in certain categories of telecommunications business to be subject to inspection and certification of standards prior to being used for providing telecommunications services.

Section 33

The licensee shall carry out maintenance, repair and improvement of the telecommunications networks, the telecommunications equipment and accessories used by the licensee to provide services in telecommunications business. This is to ensure efficient operation and technical standards prescribed in the notification issued under Section 32.

Section 34

The licensee of type 3 shall provide for qualified engineers of the number prescribed by the Commission to perform supervisory duty of the provision of telecommunications services, installation, inspection and maintenance of telecommunications networks, telecommunications equipment and accessories used in telecommunications business of the licensee to be in accordance with technical standards.

Section 35

The Office shall have the power to carry out inspection and certification of standards of equipment used in the telecommunications networks; telecommunications equipment and accessories used in the telecommunications business according to the notification of the Commission issued under Section 32, paragraph two; or in response to requests made by any person wishing to have an inspection and standard certification.

The inspection and standard certification under paragraph one shall be in accordance with the regulations announced by the Commission.

Section 36

For any person wishing to conduct inspections and standard certification, such person shall be established as a unit for inspection and standard certification of equipment used in telecommunications networks, telecommunications equipment and accessories used in telecommunications businesses. Such unit must be a juristic person and a license must be granted by the Commission.

The qualifications of the applicant for a license, the filing of application for a license, the issuance of a license, the duration of a license, the renewal of a license, the fees for issuing and renewal of a license shall be in accordance with the rules, procedures and conditions announced by the Commission.

The inspection and certification unit must comprise inspectors with the qualifications and in the number as prescribed by the Commission.

In granting permission to establish an inspection and certification unit, the Commission may set out any terms and conditions as may be deemed appropriate according to the circumstances.

The collection of fees for providing inspection and standard certification services of the licensee pursuant to paragraph one shall be at the rates prescribed by the Commission.

Section 37

In the following events, the Commission shall have the power to revoke the license to establish the inspection and certification unit:

(1) the licensee to establish the inspection and certification unit lacks the qualifications as prescribed in the notification issued under Section 36, paragraph two;

(2) the inspection and certification unit has conducted inspection, reported the result of the inspection or provided the certification in bad faith;

(3) the inspection, the reporting on the result of inspection or provision of certification has been conducted with unreasonable delay to the point of causing serious damage to the applicant for inspection;

(4) the inspection and certification unit has inspectors of incomplete qualifications or number as prescribed by the Commission.

The revocation of a license under paragraph one shall not have effect on the standard certification, which has already been given by the inspection and certification unit prior to the revocation of the license, except for the standard certification given in bad faith or which is not in accordance with the standard prescribed by the Commission.

In such case, the Commission may issue an order to revoke such standard certification.

If any person suffered the damage from the standard certification being revoked according to paragraph two, and if such person has not participated in such act of dishonesty, the inspection and certification unit of which the license has been revoked shall have the duty to pay compensation for the damage suffered by such person.

Section 38

In the event of malfunction or abnormal operation of the telecommunications networks, the telecommunications equipment or any other accessories of the licensee, which caused disruption to the telecommunications business or variation from the standards prescribed in the notifications issued under Section 32, the competent officer shall have the power to order the licensee to amend, improve or suspend the use of such telecommunications networks or equipment.

The provisions in paragraph one shall also apply to the equipment used in the telecommunications of the service users mutatis mutandis.

 

Chapter 4

Rights of the Licensee

 

Section 39

For the purpose of providing telecommunications services, if the licensee has the reason to pitch or erect poles or lay the cable, lay the pipe or to install any accessories; and it is necessary to exercise the rights under this Section, the licensee shall prepare the plan indicating the details of the characteristics, directions and boundary line for the pitch or erection, laying the cable, laying the pipe and installation of any accessories for submission for approval from the Commission in advance.

Upon the Commission having granted the approval according to paragraph one, the licensee shall have the rights as follows:

(1) to lay the cable, install any accessories for the purpose of providing telecommunications services, which must be carried out on or along the poles, pipe or any structures that are used in similar manner as those of other licensees or government agencies or any service providers of public utilities, whereby other licensees or such government agencies shall not refuse such operations; however, a demand for payment for such use may be imposed as may be deemed necessary;

(2) to pitch or erect poles or lay the cable or pipe or to install any accessories in connection with the provision of telecommunications services on the land which is a national public property by notifying the state authority who have the power and duty to be in charge of such land in advance; also the rules and conditions prescribed by such authority shall be complied with;

(3) to pitch or erect poles or to lay the cable, pipe or to install any accessories in connection with the provision of telecommunication services on other persons’ land by making an agreement with the owner or possessor of such land according to the guidelines prescribed by the Commission.

In the event of failure of the licensee to perform according to paragraph two due to the inability to obtain permission or the expenses or remuneration demanded is unusually high for such use, the licensee may file a petition to the Commission to consider the matter. If the Commission is of the opinion that the undertaking of the licensee is necessary and inevitable, and shall not inappropriately cause damage to the government agencies, the owners or possessors of the land or property, the Commission shall have the power to give advance notice of the use of such land or property for such purposes to the government agencies or owners or possessors of the land or other property not less than 30 days in advance as well as specifying the date, time and acts to be carried out.

The recipient of the notice under paragraph three may file a petition with the Commission indicating unreasonable grounds for using the land or property for such purposes or the undertaking shall cause serious damage to the utilization of the land or property in order for the Commission to make a decision within 30 days of the receiving date of the notice. The decision of the Commission shall be final.

Upon expiration of the notification period given by the Commission under paragraph three and the licensee has already paid the consideration for use of land or property under Section 40, the licensee shall have the right to use the land or property for the purpose of the undertaking under paragraph two, provided that it shall be in accordance with the rules announced by the Commission. The use of such land and property shall not cause nuisances or have effects on natural condition nor unreasonably decrease the utilization of the land.

Section 40

The licensee must pay consideration for use of land under Section 39 in the amount prescribed by the Commission.

In the event where the authority who has the duty to be in charge of the land or property or the owner or possessor of the land or property refuses to accept the consideration pursuant to paragraph one, the licensee shall then place the consideration with the Commission according to the rules prescribed by the Commission.

The licensee or the owner of the land or the authority who has the duty to be in charge of the land who is not satisfied with the amount of the consideration prescribed by the Commission pursuant to paragraph one shall have the right to institute legal proceedings with the Administrative Court.

Section 41

Upon having given an advance notice to the public authorities who have the duty to be in charge of the land or property or the owners or possessors of the land according to the rules prescribed by the Commission, the licensee shall have the right to suspend the cables passing over or across the land which is the public domain or that of other persons without receiving consent if such undertaking has no effect on the utilization of such land.

The state authority being in charge of the land or property or the owners or possessors of the land may give a notice to the licensee to suspend the cable in the area where there would be no effect on the utilization of their own land. If the damage has been incurred as a result of such undertaking, they shall have the right to claim for damages from the licensee. For this purpose, the provisions of Section 39 and Section 40 shall apply mutatis mutandis.

The provisions of this Section shall also apply to the undertaking under Section 39, paragraph two (1) mutatis mutandis.

Section 42

The licensee may enter the land on which the telecommunications networks, poles, cable, piping or accessories are located for the purpose of inspection, maintenance, repair or prevention of possible dangers or damage by notifying the possessor of such land in writing not less than 30 days in advance except in case of an emergency where it is necessary to remedy the damage incurred at that moment, the licensee may enter the land for remedy immediately.

If damage has been incurred due to the undertaking carried out under paragraph one, the injured person shall have the right to claim for indemnity for such damage against the licensee.

Section 43

If the equipment of the service user of telecommunications services causes telecommunications interference or may cause damage to telecommunication networks or equipment used in the telecommunications business of the licensee, the licensee shall send a written notice to such service user to change or alter or improve such equipment within reasonable time.

In the event that the service user has not complied with the notice given under the foregoing paragraph and the use of such equipment still caused telecommunications interference or may cause damage to the telecommunications network or equipment used in the operation of business of the licensee, the licensee may suspend the provision of telecommunication services to such service user on a temporary basis until such service user shall act according to the notice.

In a necessary and urgent case, the licensee may suspend the provision of telecommunications services immediately and subsequently give notice for acknowledgement.

Section 44

No person shall cause damage to, destroy, depreciate or render useless the telecommunications network, poles, cable, pipe, trans-receiver or any other equipment used in the provision of telecommunications services or the telecommunications service terminals.

For the purpose of this Section, the Commission may prescribe protective measures to provide protection to various objects under paragraph one as may be deemed necessary.

 

Chapter 5

Rights of the Service users

 

Section 45

Any person who has suffered from damage as a result of the provision of telecommunications services by the licensee, such person is entitled to the right to file a complaint with the Commission by submitting a notice in writing to the Office.

The written complaint under paragraph one must specify the fact clearly; and if there is any related evidence, it must also be submitted together with the complaint.

In the course of consideration of the complaint by the Commission, if it is requested by the complainant, the Commission shall have the power to require the licensee to remedy the damage in favor of the complainant on a temporary basis.

Section 46

The Commission shall complete the consideration of the complaint within 30 days from the date of receipt of the written complaint, whereby the disputing party shall be given an opportunity to explain the facts and produce his own evidence. If the Commission is of the opinion that the licensee has acted in violation of the law, the terms and conditions of the license, the contract for provision of services, or not in accordance with good standard practice in providing services, the Commission shall have the power to order the licensee to carry out the remedies within the prescribed time.

Section 47

In case the service user is of the opinion that the licensee has collected fees or service charge at the rate higher than that prescribed by the Commission under Section 55 or higher than the rate collected from other service users of the same characteristics or categories of telecommunications, or that the licensee has collected the fees or service charge incorrectly, the service user has the right to request for information on his use of services from the licensee.

The licensee must give the information pursuant to paragraph one to the service user within reasonable time, provided that it shall not exceed thirty days of the date of request. In case of request by the service user, the licensee must prepare and furnish the service user with certification document of correct information for which consideration may be charged from the service user in the amount not higher than it should actually be according to the rules prescribed by the Committee.

Section 48

In case there is a reasonable cause to believe that the licensee collect fees or service charge in any one of the characteristics pursuant to Section 47, paragraph one, the service user has the right to file a complaint with the Commission and Section 45 and Section 46 shall apply mutatis mutandis.

For the consideration of complaint pursuant to paragraph one, the licensee shall have the burden of proof to confirm correctness of the fee or service charge collection.

Section 49

The service users shall have the right to bring their own telecommunications equipment for use in receiving services from the licensee.

The collection of fees for using the telecommunications equipment of the service user with the service provision system of the licensee shall be in accordance with the rates and the rules prescribed by the Commission.

In providing telecommunications services, the licensee shall not prescribed the terms and conditions for providing services by forcing the service user to use the telecommunications equipment of the licensee or as determined by the licensee except for the provision of telecommunications services in any particular category with technical requirements to exclusively use the equipment specified by the licensee.

The licensee may prescribe such terms and conditions only upon receiving approval from the Commission. However, such prescription of categories of the telecommunications equipment shall not be prejudicial to the right of the service users who may be able to acquire the specified telecommunications equipment for use in receiving services. For such purposes, the licensee shall not refuse to provide the service user with services or connection to the service provision system.

Section 50

The Commission shall establish measures to protect the service user in relation to personal information, the right to privacy and freedom in communicating by means of telecommunications.

The licensee shall have the duty to comply with the measures prescribed by the Commission pursuant to paragraph one.

When it is found that any person violates the rights of the service user pursuant to paragraph one, the licensee or the Commission shall act to end such violation and notify the service user forthwith.

 

Chapter 6

Contracts to Provide Telecommunications Services

 

Section 51

Any contract between a licensee and a service user of telecommunications services and any conditions relating to the provision of telecommunications services to be prescribed by the licensee, including any amendment or alteration of such contract or conditions shall require a prior approval from the Commission.

A contract and conditions to be approved by the Commission shall, at least:

(1) contain clear and fair provisions relating to the duties and responsibilities of the licensee and the service users;

(2) contain provisions relating to the standards of service provision of the licensee.

(3) contain full and fair provisions relating to the category and limits of expenditure for service provision, and the provisions which ensure that there shall be no collection of money for expenditure other than that prescribed.

(4) not contain any provisions which limit the utilization of services by any service users without reasonable grounds;

(5) not contain any provisions which discriminate, divide or obstruct service users or provisions which are unfair to either party to the contract.

After the licensee has been granted an approval in respect of any contract or conditions, the licensee shall have the right to apply such contract or conditions to the service users.

For the purpose of this Section, the Commission shall have the power to issue a notification specifying standard terms for a contract and conditions relating to the provision of telecommunications services, and to specify any category of contract or conditions which do not require an approval from the Commission.

If there are provisions under any law which prescribe the rules for execution of a contract relating to telecommunications service provision for protection of consumers, the licensee shall have the duty to comply with the rules under such law.

Section 52

The licensee shall arrange for a general dissemination of information on the form of contract and the terms and conditions for the provision of services according to the procedures prescribed by the Commission, and such information shall be posted in a prominent place at the place of business of the licensee for public inspection.

Section 53

If a licensee has made an advertisement to assure the public of the standard of quality of its telecommunications service provision, the licensee shall have the duty to comply with its advertisement.

If the licensee does not provide its telecommunications services according to its advertisement, the Commission shall have the power to order the licensee to take corrective action to be in accordance with its advertisement.

Section 54

Any contract or agreement relating to the operation of telecommunications business and provision of telecommunications services as specified in the notification of the Commission to be entered into between a licensee and a foreign government, an international Organization, a natural or juristic person in a foreign country including any amendment, alteration or cancellation thereof shall require a prior approval from the Commission unless such contract or agreement is related to normal course of purchase or hire of services.

The licensee shall deliver one set of copies of all the contracts or agreements it has entered into with a foreign government, an international Organization, a foreign natural or juristic person in a foreign country according to the rules prescribed by the Commission within 30 days from the date of such contract or agreement, unless such contracts or agreements are related to any purchase or hire of services, or contracts or agreements exempted by the Commission from submission to it pursuant to its notification.

If the Commission deems that any contract or agreement is made without having been granted an approval pursuant to paragraph one or any arrangement which is different from that approved by the Commission has been made, the Commission shall have the power to order the licensee to take corrective action according to the rules and period of time prescribed by the Commission. If the licensee fails to proceed accordingly within such period of time, such failure shall be deemed to constitute the ground for revocation of the license.

 

Chapter 7

Fees and Service Charges in Telecommunications Business

 

Section 55

The Commission shall issue notifications prescribing the category and maximum limits in respect of the rates of fees and service charges that the licensee shall collect from service users in accordance with the nature and category of the licensed telecommunications business.

Section 56

The maximum limits in respect of the rates of fees and service charges under Section 55 shall:

(1) have a clear method of calculation;

(2) be the rates which are fair to the licensee and service users;

(3) not be of the characteristics which discriminate, divide or obstruct any service users or person.

Section 57

Each licensee shall not collect the fees or service charges at the rates exceeding or other than the maximum limits prescribed by the Commission in Section 55 and such rates shall not be prescribed in the manner which constitutes a trade barrier and is in effect a restriction of fair competition, and shall collect the same from each service user at the same rates for telecommunications services of the same nature or category.

The Commission may require the licensee to give a discount on or an exemption of the fees or service charges in respect of the provision of information and knowledge for the purpose of promoting public knowledge according to the rules prescribed by the Commission.

Section 58

The licensee shall not collect a deposit money or other payment which is of the nature of collection of an advance payment.

Violation or failure to comply with the provisions of this Section by the licensee shall be deemed to cause serious damage to public interests.

The provisions under this Section shall apply to the telecommunications service contract executed under this Act.

Section 59

The licensee shall arrange for general dissemination of information on the rates of fees and service charges and notify each of the service users of its services thereof according to the procedures prescribed by the Commission, and such information shall be posted in a prominent place at the place of business of the licensee for public inspection.

Where it deems appropriate, the Commission may require the licensee to establish a system of advance notification of the rates of fees and service charges to service users prior to their use of services each time, and such notification shall be given to service

users upon their request and at no cost to them.

Section 60

In the event of a change in economic or social condition or there is the occurrence of any event which renders the maximum limits of the fees or service charges prescribed by the Commission under Section 55 to be inappropriate, resulting in the advantages and disadvantages between the licensees or causes service users to have to unfairly bear an excessive burden, the Commission may consider adjusting such rates of fees or service charges to make them appropriate.

 

Chapter 8

Monitoring and Supervision

 

Section 61

For proper implementation of this Act, a competent officer shall have the powers and duties as follows:

(1) to enter into the building or place of business of the licensee during the hours between sunrise and sunset or during business hours of such place to conduct inspection of the business, books of accounts, documents, evidence or relevant information as well as to inspect any acts which may be violating the provisions of this Act or non-compliance with the requirements prescribed in

the license.

(2) to send a letter calling any person to give statements or to furnish documents or any materials for consideration.

(3) to inspect and compile the facts and then make a report to the Commission in the event that the licensee has committed an offence or caused damage due to non-compliance with this Act or with the requirements prescribed as a condition for the granting of the license.

In the execution of the duties of the competent officer under paragraph one, the persons concerned shall provide reasonable conveniences.

After having entered and inspected in accordance with paragraph one, if the inspection has not been completed, the competent officer may continue the inspection after sunset or beyond the business hours of such place.

The execution of duties of the competent officer under this Section shall be in accordance with the rules specified by the Commission in its notification. In this regard, such notification shall specify the title of the position of the competent officer who shall exercise his powers and duties under this Section, and the reasons and necessity for which such officer shall be entitled to exercise his powers and duties under this Section in each case.

In the execution of their duties in accordance with this Act, the Commission members and the competent officers shall be officials under the Criminal Code.

Section 62

In the execution of his duties, the competent officer shall present his identification card to the persons involved.

The identification card of the competent officer shall be in the form specified by the Commission in its notification.

Section 63

In case of emergency or exigency in order to maintain public order, national security or economic stability or to protect the public interests, the Commission may order the competent officer to take possession of and use the equipment and various tools and instruments belonging to the licensee for certain arrangements or entrust a government agency to make certain arrangements on its behalf on a temporary basis or order the licensee or personnel of the licensee to do certain acts or things until such case of emergency or exigency shall extinguish.

In the execution of his duties under paragraph one, if the competent officer has caused damage to the licensee, the licensee shall have the right to claim compensation for such damage from the Office on a just and fair basis.

 

Chapter 9

Enforcement of Administrative Authority

 

Section 64

If it is found by the Secretary-General that a licensee violates or fails to comply with Section 9, paragraph five, Section 11, Section 12, paragraph two or three, Section 13, paragraph two, Section 15, Section 17, Section 18, Section 20, Section 22, Section 23, Section 24, Section 25, Section 26, paragraph two, Section 27, Section 28, Section 29, Section 33, Section 34, Section 38, Section 45, paragraph three, Section 46, Section 49, Section 50, Section 51, Section 52, Section 53, Section 54, Section 56, Section 57, Section 58 or Section 59, the Secretary-General shall have the power to order the licensee to cease such violation or take corrective, remedial or proper action for compliance within the required period of time.

Section 65

In the event that the licensee having received an order from the Secretary-General under Section 64 is not satisfied with such order, the licensee shall have the right to file an appeal with the Commission within fifteen days of receipt of such order. The decision of the Commission shall be final.

Section 66

If the licensee fails to comply with the order of the Secretary-General under Section 64, if the period in which an appeal pursuant to Section 65 may be filed has elapsed or the decision of the Commission is in confirmation of the order of Secretary-General and after the Secretary-General has notified the licensee in writing thereof, the licensee continues to be in non-compliance with such order, the Secretary-General may determine an administrative penalty according to the law relating to administrative procedures which shall not be less than twenty thousand Baht per day.

If the licensee continues to be in negligence of proper compliance with the order or violates the order of license suspension or if a serious damage is caused to the public interests, the Commission shall have the power to suspend or revoke the license.

The determination as to the cases of commission of offence which shall be subject to suspension or revocation of license shall be as specified in the notification of the Commission.

 

Chapter 10

Provisions on Penalties

 

Section 67

Any person operating telecommunications business without a license or using frequencies in operating telecommunications business without permission shall be liable to penalties as follows:

(1) If the commission of offence is the operation of business in respect of which the first category of license is required, such person shall be liable to a fine not exceeding one hundred thousand Baht.

(2) If the commission of offence is the operation of business in respect of which the second category of license is required, such person shall be liable to imprisonment for a term not exceeding two years or a fine not exceeding one million Baht, or both.

(3) If the commission of offence is the operation of business in respect of which the third category of license is required, such person shall be liable to imprisonment for a term not exceeding five years or a fine not exceeding ten million Baht, or both.

If the court has passed a judgement that such person is guilty according to this Act, the court shall order a seizure of all the tools, equipment and any thing used for such telecommunications business operation.

Section 68

Any licensee who expands its service provision without permission pursuant to Section 14 shall be liable to imprisonment for a term not exceeding three years or a fine not exceeding six hundred thousand Baht, or both.

Section 69

Any licensee who violates Section 21 shall be liable to imprisonment for a term not exceeding three years or a fine not exceeding six hundred thousand Baht, or both. In the case of a repeated offence, the penalties shall be doubled.

Section 70

Any licensee who does not comply with the order of the Commission under Section 31 shall be liable to imprisonment for a term not exceeding three years or a fine not exceeding six hundred thousand Baht, or both.

Section 71

Any person who conducts an inspection or grants certification of the standards of equipment used in the telecommunications business without permission pursuant to Section 36 shall be liable to imprisonment for a term not exceeding three months or a fine not exceeding fifty thousand Baht, or both.

The licensee to establish an inspection and standard certification unit of equipment used in the telecommunications business, who does not comply with the conditions prescribed by the Commission under Section 36, paragraph four, shall be liable to a fine not exceeding ten thousand Baht.

Section 72

Any person who violates Section 44, paragraph one, but such violation does not result in any disruption to the telecommunications system, shall be liable to imprisonment for a term not exceeding six months or a fine not exceeding one hundred thousand Baht, or both.

Section 73

Any person who damages, destroys, causes depreciation in value or renders useless any mark, buoy or any other thing required for protection of telecommunications systems according to the measures specified in the notification of the Commission under Section 44, paragraph two, shall be liable to imprisonment for a term not exceeding two years or a fine not exceeding four hundred thousand Baht, or both.

Section 74

Any person who unlawfully conducts any acts for the purpose of intercepting, utilizing or disclosing any messages, news or any other information communicated through telecommunications shall be liable to imprisonment for a term not exceeding two years or a fine not exceeding four hundred thousand Baht, or both.

Section 75

Any person who does not provide convenience to the competent officer who perform duties under Section 61, paragraph one (1) or who is not present to give statements or deliver any documents or objects demanded in writing by the competent officer under Section 61, paragraph one (2), shall be liable to imprisonment for a term not exceeding one month or a fine not exceeding ten thousand Baht, or both.

Section 76

Any person who obstructs the performance of duties of the competent officer under Section 63, paragraph one, shall be liable to imprisonment for a term not exceeding six months or a fine not exceeding one hundred thousand Baht, or both.

Section 77

In relation to the offences committed under this Act the penalty for which is an imprisonment for a term not exceeding six months, the Commission shall have the power to settle out of court a fine for the offences. In exercising such power, the Commission may appoint a sub-committee to act on its behalf and may prescribe the rules for the settlement or any conditions for the execution of duties of the subcommittee.

If it is obvious to the investigation officer that an offence has been committed, and the offender agrees to settle out of court a fine for such offence, the investigation officer shall submit such case to the Commission for consideration and settlement without delay.

After the offender has paid the fine according to the amount settled out of court, the case shall be regarded as settled in accordance with the Criminal Procedure Code.

Section 78

If the person who commits an offence and is liable to a penalty under this Act is a juristic person, the managing director, manager or any person responsible for the operation of such juristic person shall also be liable to the penalty prescribed for such offence, unless it can be proven that such offence has been committed without his knowledge or consent.

 

TRANSITIONAL PROVISIONS

 

Section 79

The Commission shall issue a license for operation of telecommunications business under this Act to the Communications Authority of Thailand and the Telephone Organization of Thailand according to the nature and category of their business operations, scope of service provision, and rights to provide telecommunications services to the extent that they are under the responsibility of the Communications Authority of Thailand and the Telephone Organization of Thailand as of the date of enforcement of this Act provided such license shall be issued within one hundred and eighty days from the date on which the Commission prescribes in its notification the rules for the granting of permission under Section 8.

In issuing the license under paragraph one, the Commission shall prescribe conditions relating to the conduct of business of the Communications Authority of Thailand and the Telephone Organization of Thailand as appropriate, taking into consideration the interests of the public who have received the existing services and the development for service quality and efficiency or any other acts in order to achieve the objectives of this Act.

The Communications Authority of Thailand and the Telephone Organization of Thailand shall furnish the Commission with detailed information regarding their operations of telecommunications business within thirty days from the date of enforcement of this Act.

Pending receipt of the license under paragraph one, the Communications Authority of Thailand and the Telephone Organization of Thailand may continue to operate their telecommunications business.

Section 80

In the operation of telecommunications business by the Communications Authority of Thailand or the Telephone Organization of Thailand which has been granted a license pursuant to Section 79, if such organization has granted permission, concession or contract to any person to operate telecommunications business before the date of enforcement of this Act, the person who has been granted the permission, concession or contract shall continue to have the right to operate such telecommunications business according to the existing scope and rights under such permission, concession or contract until the termination of such permission, concession or contract.

The operation of telecommunications business of the person who has been granted a permission, concession or contract under paragraph one shall be subject to the rules under this Act and the conditions prescribed by the Commission on the basis of the principles of free and fair competition. In this regard, such person shall be deemed to have the same rights, duties and liability as the licensee under this Act. In addition, in committing any offence under this Act which is deemed to constitute the ground for the Commission to have the power to withdraw the license, if such offence is committed by the person who has been granted a permission, concession or contract, the Commission shall have the power to issue an order withdrawing such permission, concession or contract.

The execution of an agreement to change the conditions for the granting of permission, concession or contract which does not constitute a reduction or restriction of rights to operate telecommunications business according to the remaining period of such permission, concession or contract shall not be deemed an act which affects the validity of such permission, concession or contract.

If any person who has been granted a permission, concession or contract enters into an agreement with the Communications Authority of Thailand or the Telephone Organization of Thailand to change such permission, concession or contract to a license granted under this Act, the Commission shall proceed to issue a license to the person who has been granted such permission, concession or contract with the rights to operate telecommunications business according to the existing scope of service provision agreed by the parties and the remaining period of such permission, concession or contract to the extent that such rights are not contrary to or inconsistent with the provisions of this Act. In issuing the license, Section 79 shall apply mutatis mutandis.

The provisions of this Section shall also apply mutatis mutandis to any person who has been granted permission, concession or contract by other state agencies existing on the date of enforcement of this Act.

Section 81

After the Commission has prescribed in its notification the rules for granting the permission pursuant to Section 8, the operators of telecommunications service provision who have lawfully operated such services before the issuance of the notification for at least one hundred and twenty days and are not subject to Section 79 and Section 80, if they wish to continue their service provision, shall file an application for a license under this Act within ninety days from the date of such notification by the Commission. Pending the granting of such license, the said operators may continue to provide telecommunications services. The Commission must complete its consideration of an application for a license within ninety days from the date of receipt of the application.

The provisions of paragraph one shall apply mutatis mutandis to the case where the Commission has issued a notification prescribing additional characteristics and categories of telecommunications business after issuing a notification under paragraph

one.

 

 

Countersiged by Pol. Lieu. Col. Thaksin Shinawatra as Prime Minister