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Introduction
A
case study, the legal and general issue of
PSB in Thailand, illustrates how the law
has been used as an instrument for the state
agencies to manipulate the broadcasting
industry for about 50 years. It also spells
out how the constitution and its organic
Introduction
laws have been enacted to liberalize the
national broadcasting policies as well as to
re s h a p e t h e w h o l e b ro a d c a s t i n g a n d
telecommunication structure in order to serve
the "public interest" at national and local
l
e
v
e
l
s
.
Introduction
U nder
the present Constitution and its
organic laws, a new independent
broadcasting regulator is to be set up to
reallocate and manage all existing radio
frequencies for public interest, resulting
in the emergence of an ideal PSB in the
country. Unfortunately, owing to some
Introduction
legal loopholes and conflict of interests, the
establishment of a broadcasting regulator,
the National Broadcasting Commission
(NBC), has been long delayed together with
the enactment of the second organic law,
thus plunging the revolution of the
b ro a d c a s t i n g i n d u s t r y i n t o c h a o t i c
s i t u a t i o n s .
Legal Basis for the PSB
Thailand
has only one law to regulate the
whole broadcasting industry. This law is
quite old (about 50 years old) and
obsolete. The existing Broadcasting Act
1955 (with fourth amendment in 1987) has
made all the broadcasting industry under
control of state agencies, notably the
Defense Ministry, the Public Relations
Department, the Mass Communications
Organization of Thailand, the National
P o l i c e
B u r e a u
e t c .
Legal Basis for the PSB
The Post and Telegraph Department under
the Ministry of Communications has
been entrusted with the responsibility
for assigning radio frequencies to all
state agencies concerned, while the
National Broadcasting Committee under
the Public Relations Department has
been in charge of overseeing the
operation of the broadcasting industry,
particularly its programming.
Legal Basis for the PSB
Thus,
t h e f re q u e n c y a l l o c a t i o n a n d
broadcasting management in Thailand
have been so far centralized and
manipulated by a small number of
high-ranking officials. It has often been
criticized whether such procedures have
been carried out for public interest or for
some other interest groups.
Legal Basis for the PSB
Since
all radio and television stations are
owned by the state and financed in part by
the government budget, they naturally have
some obligations to provide "public service"
programs to the audiences. The Army's
broadcasting network is considered essential
for national security while the MCOT's
network, a state enterprise, is said to
provide a knowledge-based program for the
p
u
b
l
i
c
.
Legal Basis for the PSB
Of
all, the PRD's broadcasting network,
the oldest in the country, has been well
distinguished as the public service
broadcasting system, even though it has
been subjected to political interference
from time to time and often labeled as a
"government spokesman". But that is a
common characteristic of all state
broadcasters across Asia and Pacific.
Emergence of an "Ideal" PSB
T he new concept of PSB has become
popularized in Thailand in recent years
as a result of the promulgation of the new
Constitution in the year 1997. The 1997
Constitution was aimed at bringing about
political reforms in the country through
decentralization process.
Emergence of an "Ideal" PSB
Of particular importance to the
communicatio n media sector, the
Constitution guarantees a wide range of
press freedom, promotes an ethical
standard of media professionalism and
liberalizes a regulatory system of the
broadcasting and telecommunication
i
n
d
u
s
t
r
y
.
Emergence of an "Ideal" PSB
Of particular relevance to PSB, the new
Constitution calls for a reallocation of all
existing radio frequencies in order to serve
the "public interest" at all levels. Article
40 of the Constitution stipulates that:
"All r adio frequenc ies use d for
broadcasting and television services are
national resources to be utilized for public
i
n
t
e
r
e
s
t
.
Emergence of an "Ideal" PSB
An independent regulatory body must be
set up to allocate the radio frequencies as well
as to supervise the management of both
b ro a d c a s t i n g a n d t e l e c o m m u n i c a t i o n
services. Such undertakings as said above
must take into consideration the utmost
benefits of people at national and local levels
in the areas of education, culture, national
s e c u r i t y, a n d o t h e r p u b l i c s e r v i c e s ,
including free and fair competition ."
Emergence of an "Ideal" PSB
Thus, Article 40 provides a legal framework
for establishment of an ideal PSB in
Thailand. Under this article, two organic
laws are required to be enacted by the
Parliament. The first organic law, namely
the Organization for Frequency Allocation
and Management Act, had been passed by
the Parliament in 2000. It provides a
guideline for setting up two separate
regulators; one for broadcasting, and the
other for telecommunication.
Emergence of an "Ideal" PSB
Both the National Broadcasting Commission
(NBC) and the National
Telecommunications Commission (NTC)
are to be composed of 7 members each for
a six year term. They are entrusted with a
major responsibility for drawing up a
"master plan", allocating radio frequencies
and supervising all broadcasting and
telecommunication operations etc.
Emergence of an "Ideal" PSB
The second organic law, the Broadcasting
Operation Act, is being screened by the
government agencies concerned and is
expected to be approved by the Parliament
in the near future. Once passed, the
Broadcasting Operation Act will lay down
guidelines for setting up and operating a
PSB as well as commercial and community
broadcasting systems in Thailand.
Emergence of an "Ideal" PSB
Most importantly, this second organic law
is intended to replace the long-existing
Broadcasting Act 1955, thus breaking
down all traditional administrative
procedures of Thai broadcasting
o p e r a t i o n s .
Emergence of an "Ideal" PSB
The first organic law clearly states that a
"master plan" is drawn up by NBC to
cover content in the following areas:
1. Education, religion, arts, and culture
2. Science, technology, and environment
3. Agriculture and promotion of other
o c c u p a t i o n s
4 .
N a t i o n a l s e c u r i t y
Emergence of an "Ideal" PSB
5. Redistribution of information to
promote an understanding between
g o v e r n m e n t a n d c i t i z e n s
6. Redistribution of information for the
Parliament to promote a good understanding
between the public and the Parliament
7. Redistribution of information to
publicize and educate the public about a
democratic form of government under a
monarchy as head of state.
Emergence of an "Ideal" PSB
To fulfill these objectives, the organic law
requires that at least 20 percent of the
radio frequencies are reserved for
community radio, while the rest (80
percent) is shared between national
public service broadcasting and
commercial broadcasting.
Emergence of an "Ideal" PSB
Meanwhile, the second organic law has laid
down certain criteria for classifying the
national broadcasting system into:
1) public service broadcasting,
2) commercial broadcasting,
3) Community
broadcasting.
Crucial Legal Issues
A major obstacle lies in the selection
process of the 7 members for the
b r o a d c a s t i n g r e g u l a t o r, N B C .
According to the Constitution, the two
broadcasting and telecommunication
regulators were scheduled to be
established by the year 2000, but the
selection processes are still now far from
f
i
n
i
s
h
e
d
.
Crucial Legal Issues
The selection of the regulator's members
had been carried out by a 17-member
committee drawn from representatives of
academic, professional, official, and
consumer groups. The selection
committee was required to submit a
short-list of 14 candidates to the House of
Senate who will then choose 7 finalists by
m a j o r i t y
v o t e .
Crucial Legal Issues
The selection of NBC came to a standstill
after a list of 14 finalists had been made
and was to be submitted to the Senate for
f u r t h e r s c r u t i n y. O n e o f t h e 1 0 3
candidates who missed out in the first
round of selection lodged a petition to the
Administrative Court, accusing the
Crucial Legal Issues
selection panel of breaching the
Administrative Procedure Act which states
that selections must be free of cronyism. He
also claimed that the 14 finalists were picked
in violation of the conflict-of-interest
principle as some were already involved in
b ro a d c a s t i n g b u s i n e s s e s t h e m s e l v e s .
Crucial Legal Issues
T he newly established Administrative
Court found the petition to have grounds
and issued an order on August 22, 2001
to stop the panel from forwarding its
short-list of finalists to the senate. The
Administrative Court later reached a
verdict in favor of the plaintiff and the
case was appealed by the selection panel
to the Administrative Court's Supreme
Order for final decision.
Crucial Legal Issues
The selection of the National
Telecommunication Commission's members
ran into even worse situations when the
short-list of 14 candidates was refused by
the Senate for consideration and the case
was brought to the Administrative Court by
a failed candidate. The Court also ruled in
favor of the plaintiff and it is now left to
the Supreme Court to reach the final
v
e
r
d
i
c
t
.
Crucial Legal Issues
The Administrative Court's verdicts came as
a surprise to many people and affected the
enforcement of the Constitution and its
organic laws. The development of many
broadcasting and telecommunication
projects, including an ideal-type PSB, has
b e e n f u r t h e r d e l a y e d .
Crucial Legal Issues
In view of current political polarization and
globalization pressure in Thailand, no one
knows what is going to happen next. It
seems that a legal (and political) battle for
radio frequencies is looming ahead. In this
context, it is interesting to see whether the
PSB will eventually emerge on Thai soil to
serve the public interest as envisioned in the
C o n s t i t u t i o n .