Considering the ongoing debate in Thailand about the potential merger between two of the three major network carriers, questions in the Thai telecommunications community are swirling as to “what will happen” post-merger.
From a regulatory perspective, specific regulations impose oversight on operators in relevant telecommunications markets under various circumstances. The National Broadcasting and Telecommunications Commission (NBTC) categorizes the relevant markets as follows:
Retail markets consist of:
- domestic fixed-line telephone services;
- domestic mobile telephone services;
- International telephone services;
- fixed-line internet services; and
- mobile internet services.
Wholesale markets consist of:
- international internet gateway services;
- international telephone gateway services;
- network interconnection for fixed call termination services;
- network interconnection for mobile call termination services;
- wholesale broadband access services; and
- leased line services.
The NBTC may name telecommunications business operators with significant market ‘power’ (operator capability that may pose a barrier to competition in the relevant market). So, the NBTC shall assess markets that are non-competitive and have obstacles to competition and then name the operators with significant market power (SMP).
A market shall be considered non-competitive if it has:
- a high market concentration (according to the Herfindahl-Hirschman Index as decided by the NBTC);
- a high barrier to new entry; or
- low competition with no potential for improvement.
If a market is non-competitive, then the NBTC shall categorize operators in such market as SMP operators as follows:
- Operators that have a market share (including the market share of its subsidiaries) of at least 40 percent; or
- Operators that have a market share from 25 percent to 40 percent but that the NBTC considers as having SMP, considering the following:
-
- size of overall business;
- control over fundamental network facilities;
- technological advantage (compared to other operators in the same market);
- bargaining power;
- access to funding resources;
- variety of products and services;
- economies of scale;
- economies in production;
- vertical integration of service businesses;
- a high volume of distribution or sale of products;
- competency to compete in the market;
- barriers to business growth; and
- The capability of new entry by competitors to the market.
Suppose it is impossible to name only one SMP operator because of market concentration, the similarity of products or services, the similarity of cost structure, or the likeness of market share. In that case, the NBTC may name more than one operator in the market as an SMP operator.
SMP operators, or any operators with more than 25 percent market share in any relevant markets, are forbidden from conducting the following activities:
- price discrimination;
- stipulating a fixed fee;
- stipulating service fees or product prices lower than the cost to limit competition;
- stipulating conditions to force other operators to use certain services or to limit choices of services;
- Unreasonably restrain from, reduce, or limit the provision of services or sale of products; for example, a Type 3 operator refusing services to a Type 1 operator, effectively reducing the number of operators in the market;
- stipulating unfair conditions on the provision of services to other operators;
- refusing to supply necessary networks or facilities to other operators;
- bundling services or products to other operators;
- concealing information necessary for using or supplying services;
- using information derived from other operators to create a competitive advantage;
- using techniques with the intent to limit the services of other operators;
- entering into agreements or conditions with other operators or other persons with the intent to reduce or limit competition; and
- Other activities that the NBTC may stipulate from time to time.
In addition, the NBTC may issue specific measures to impose obligations or stipulate conditions on any individual operators or SMP operators, which may include orders to:
- perform or restrain from activities considered harmful by the NBTC;
- keep a separate accounting system for some services;
- disclose or report information;
- change cost-calculation formulas;
- set prices or fees for certain services;
- supply services to other operators;
- separate services;
- cancel or amend terms in service agreements; and
- other measures that the NBTC may stipulate
In conclusion, the NBTC has various regulatory tools to protect consumers in Thailand’s telecommunications market. Other factors will influence regulatory enforcement as within most nations, but the NBTC has the mechanisms to regulate powerful operators.
The material herein should not be construed as legal advice and is only for general knowledge.
For further inquiries, please contact John Formichella or Naytiwut Jamallsawat at info@fosrlaw.com
