The Legal and General Issues of PSB

1. The Legal and General Issues of PSB in Thailand: A Case Study Dr. Boonlert Supadhiloke Inspector-General, Prime Minister's Office and Professor of Mass Communication at Thammasat University

2. Introduction Acase 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

3. Introduction laws have beenenactedto liberalize the national broadcasting policies as well as to reshape the whole broadcasting and telecommunication structure in order to serve the "public interest" at national and local levels.

4. Introduction Underthe 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

5. 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 broadcasting industry into chaotic situations.

6. 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 Police Bureau etc.

7. 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.

8. Legal Basis for the PSB Thus, the frequency allocation and 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.

9. 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 public.

10. 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.

11. Emergence of an "Ideal" PSB The 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.

12. Emergence of an "Ideal" PSB Of particular importance to the communication 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 industry.

13. 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 radio frequencies used for broadcasting and television services are national resources to be utilized for public interest.

14. Emergence of an "Ideal" PSB An independent regulatory body must be set up to allocate the radio frequencies as wellas to supervise the management of bothbroadcasting and telecommunicationservices. Such undertakings as said abovemust take into consideration the utmostbenefits of people at national and local levelsin the areas of education, culture, nationalsecurity, and other public services,including free and fair competition."

15. 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.

16. 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.

17. 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.

18. 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 operations.

19. 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 occupations 4. National security

20. Emergence of an "Ideal" PSB 5. Redistribution of information to promote an understanding between government and citizens 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.

21. 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.

22. 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.

23. Crucial Legal Issues A major obstacle lies in the selection process of the 7 members for the broadcasting regulator, NBC. 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 finished.

24. 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 majority vote.

25. 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 further scrutiny. One of the 103 candidates who missed out in the first round of selection lodged a petition to the Administrative Court, accusing the

26. 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 broadcasting businesses themselves.

27. Crucial Legal Issues The 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.

28. 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 verdict.

29. 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 been further delayed.

30. 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 Constitution.