BROADCASTING BUSINESS ACT
B.E. 2551 (2008)
BHUMIBOL ADULYADEJ, REX;
Given on the 26th Day of February B.E. 2551;
Being the 63rd Year of the Present Reign.
His Majesty King Bhumibol Adulyadej is graciously pleased to proclaim that:
Whereas it is expedient to have a law on the broadcasting business;
This Act contains certain provisions in relation to the restriction of rights and liberties of persons, in respect of which Section 29, in conjunction with Section 32, Section 33, Section 35, Section 36, Section 41, Section 43, Section 45, Section 46 and Section 47 of the Constitution of the Kingdom of Thailand so permit by virtue of law;
Be it, therefore, enacted by the King, by and with the advice and consent of the National Assembly, as follows:
Section 1. This Act shall be called the “Broadcasting Business Act, B.E. 2551 (2008).”
Section 2. This Act shall come into force as from the day following the date of its publication in the Government Gazette.
Section 3. The followings shall be repealed:
(1) Sound Broadcasting and Television Broadcasting Act, B.E. 2498 (1955);
(2) Sound Broadcasting and Television Broadcasting Act (no. 2), B.E. 2502 (1959);
(3) Sound Broadcasting and Television Broadcasting Act (no. 3), B.E. 2521 (1978);
(4) Sound Broadcasting and Television Broadcasting Act (no. 4), B.E. 2530 (1987).
Section 4. In this Act:
“Broadcasting Service” means the broadcasting business under the Act on the Organizations to Assign Radio Frequency and to Regulate the Broadcasting and Telecommunications services;
“Television Service” means the television broadcasting business under the law on the organizations to assign radio-frequency spectrum and to regulate the sound broadcasting, television broadcasting and telecommunications services;
“radio broadcasting business or television broadcasting business using radio-frequency spectrum” means the radio broadcasting business or television broadcasting business required to request an assignment of radio-frequency spectrum under the law on the organizations to assign radio-frequency spectrum and to regulate the sound broadcasting, television broadcasting and telecommunications services;
“radio broadcasting business or television broadcasting business not using radio-frequency spectrum” means the radio broadcasting business or television broadcasting business that is not required to request an assignment of rap8dio-frequency spectrum under the law on the organizations to assign radio-frequency spectrum and to regulate the sound broadcasting, television broadcasting and telecommunications services;
“network” means an interconnection system of the set of transmitters or sound or visual broadcasting apparatus used by broadcast operators for broadcasting public news or programs from a station to a receiving apparatus, through conducting wire, radio-frequency spectrum, optical fiber cable, electromagnetic waves or any other means;
“network owner” means a person having his own network or right to operate the network, whether or not he is the operator of radio or television broadcasting business;
“station” means the place used to transmit and provide public information or programs of the radio or television broadcasting business notwithstanding through the provider’s own network or other’s network;
“Fund” means the Broadcasting Development for Public Benefit Fund under the law on the organizations to assign radio-frequency spectrum and to regulate the sound broadcasting, television broadcasting and telecommunications services;
“Master Plan for Radio and Television Broadcasting Business” means the radio and television broadcasting business master plan under the law on the organizations to assign radio-frequency spectrum and to regulate the sound broadcasting, television broadcasting and telecommunications services;
“frequencies” means radio waves or hertzian waves which are electromagnetic waves with frequencies lower than 3 million megahertz that are propagated in the space having no man-made conductor;
“Commission” means the National Broadcasting Commission under the law on the organizations to assign radio-frequency spectrum and to regulate the sound broadcasting, television broadcasting and telecommunications services;
“member” means the member of the National Broadcasting Commission;
“Office” means the Office of the National Broadcasting Commission;
“Secretary-General” means the Secretary-General of the National Broadcasting Commission;
“competent official” means a person appointed by the National Broadcasting Commission to perform duties under this Act.
Section 5. The Commission shall have the power to appoint the competent official and issue notifications for performance of duties under this Act.
Notifications of the Commission under this Act shall be subject to arrangement of hearings of the parties concerned.
The Notifications shall come into force upon the publication in the Government Gazette.
Section 6. The Prime Minister shall have charge and control of the execution of this Act.
CHAPTER I
Operations of Radio and Television Broadcasting Business
Section 7. Any person who intends to operate a radio or television broadcasting business shall obtain a license from the Commission in accordance with the provision of this Chapter.
The Commission shall have the power to prescribe certain types of business that shall not be deemed as radio and television business under this Act.
Section 8. The applicant for a license under this Act shall be of Thai nationality and not be the business under license suspension nor the business with broadcasting business license revoked not yet up to three years prior to the application submission date.
Section 9. Broadcasting business license shall be a restricted, non-transferable right of the licensee.
The radio and television broadcasting business licensee shall carry on the undertakings by himself. Time allocation to other persons to run the programs is permissible pursuant to the criteria and procedures prescribed by the Commission under this Act.
Part 1
Radio or Television Broadcasting Business Using Radio-Frequency Spectrum
Section 10. There shall be three types of radio or television broadcasting business license that require the use of radio-frequency spectrum as follows:
(1) License to operate public services: being a license granted to the broadcasting business which has the main objective to provide public services. This is divided into three types;
(a) Type One Public Services License: being a license granted to the broadcasting business intended for the promotion of knowledge, education, religions, arts and culture, science, technology and environment, agriculture and promotion of other occupational extension, health, sanitation, sports or enhancement of quality of life of the people;
(b) Type Two Public Services License: being a license granted to the broadcasting business intended for national security or public safety;
(c) Type Three Public Services License: being a license granted to the broadcasting business intended for dissemination of news and information to promote better understanding between the government and general public, and the parliament and the people; dissemination of news and information which may promote the distribution and provision of education to the people on the democratic regime of government with the Monarchy as Head of the State; provision of news and information services beneficial for the disabled and the underprivileged or interest groups, who conduct non-profit activities or provision of news and information for other public benefits;
(2) License to operate community services: being a license granted to the broadcasting business which has the same purpose as that of the public services business, provided that it is beneficial in response to the needs of the recipient community or locality;
(3) License to operate business undertakings: being a license granted to the broadcasting business intended for profit making in accordance with the criteria prescribed by the Commission. There are at least three types as below:
(a) License to operate business at national level: being a license granted to the radio or television broadcasting business whose service areas cover all regions of the country;
(b) License to operate business at regional level: being a license granted to the radio or television broadcasting business whose service areas cover clusters of provinces;
(c) License to operate business at local level: being a license granted to the radio or television broadcasting business whose service areas cover only individual province.
Section 11. The applicant for a license to operate public services business shall be:
(1) ministry, agency, department, independent agency under the Constitution, local administration, public organization or any other state agency which is not a state enterprise having the duty under the law or the necessity to operate radio or television broadcasting business in accordance with the criteria prescribed by the Commission;
(2) association, foundation or other juristic person set up under the Thai law which has the objective of solely carrying out activities that are of public benefit and appropriate for the public service undertakings in accordance with the nature and criteria prescribed by the Commission;
(3) tertiary educational institution for the benefit of learning and teaching purposes or dissemination of knowledge to the society in accordance with the nature and criteria prescribed by the Commission.
Section 12. The applicant for a license to operate community services shall be an association, foundation or other juristic person set up under the Thai law which is a non-governmental organization and has the objective to operate non-profit business for public benefit, or a group of local residents that is not a juristic person who forms into group to strengthen the community. The operation shall be appropriate for community service provision in accordance with the nature prescribed by the Commission.
In prescribing the nature of business under paragraph one, the Commission shall have due regard to the benefit of promoting an efficient operation of radio and television broadcasting business which should be responsive to diverse needs of the people in the community or locality including the prevention of business takeover.
Section 13. The applicant for a license to operate business undertakings shall be a juristic person set up under the Thai law and shall have the following qualifications:
(1) The applicant for a license to operate business undertakings at regional and local level shall be a juristic person in which at least one-thirds of equity shareholders or investors have domicile in respective region or locality as the case may be, and shall have stable financial status, accounting audit system and any other qualifications that can ensure the stability of the operations subject to the Notifications issued by the Commission;
(2) The applicant for a license to operate other types of business besides those in (1) shall be a state enterprise or company set up under the Thai law which has the main objective to operate radio or television broadcasting business.
Section 14. The applicant for a license under Section 11(2) and (3) and Section 12, in addition to being qualified and not being disqualified pursuant to Section 8, shall possess the qualifications and not possess the disqualifications as follows:
(1) The authorized person shall be of Thai nationality;
(2) No directors or authorized persons of the applicant have in the past been the directors or authorized persons of any other licensee whose broadcasting business license has been revoked as a result of his or her performance of management duties and not yet up to three years prior to the application submission date.
Section 15. The applicant for a license under Section 13, in addition to having the qualifications and not having the disqualifications pursuant to Section 8 and Section 14, shall possess the following qualifications:
(1) Being a juristic person in which Thai nationals have investment or own equity shares in the amount of at least three-fourths of the total capital of the juristic person;
(2) Being a juristic person in which Thai nationals have power either according to the law, articles of association or through an agreement in the voting rights of at least three-fourths of the total voting rights of the juristic person.
In the case where the applicant under Section 13 is a company, at least three-fourths of the total number of the directors and authorized directors shall be of Thai nationality.
In the case where the applicant under Section 13 is a limited partnership or registered ordinary partnership, the managing partner or manager shall be of Thai nationality.
The Commission may impose on the applicant a prohibition from committing any other act which has the nature of business takeover by a person who is not of Thai nationality.
For the benefit of this Section, it shall be deemed that the person of Thai nationality shall mean a person who is not a foreigner under the law on foreign business and each share which the Thai national holds or invests in shall be counted as one vote.
Section 16. The procedure for license application and license approval shall be in accordance with the criteria, procedures and conditions prescribed in the Notification of the Commission, whereby the applicant shall identify the station system and methods of radio or television transmission, as well as propose radio or television broadcasting service plan to the Commission for consideration.
Notification under paragraph one shall be in accordance with the Master Plan for Radio and Television Broadcasting Business and the Radio Frequency Plan under the law on the organizations to assign radio-frequency spectrum and to regulate the sound broadcasting, television broadcasting and telecommunications services.
Section 17. In granting a broadcasting business license which requires the use of radio-frequency spectrum, the Commission shall have due regard to the mission or objective of the business and the allocated frequency as stipulated in the law on the organizations to assign radio-frequency spectrum and to regulate the sound broadcasting, television broadcasting and telecommunications services as follows:
(1) The issuance of a license for public services shall take due regard to the duties under the laws or as necessary for public benefits by using frequencies allocated for the public sector;
(2) The issuance of a license for community services shall take due regard to diverse needs, resources and public benefits of the community by using frequencies allocated for the civil sector;
(3) The issuance of a license for business undertakings shall take due regard to the promotion of free and fair competition and support for certain types of business which provide proper proportion of news and documentaries by using frequencies allocated for the private sector;
Section 18. Radio and television broadcasting business licenses shall be of a term in accordance with the criteria prescribed by the Commission having due regard to a cost-benefit duration, objectives of the business undertakings, directions for the applicant’s business development, consumers’ demands, equal competition among the operators as well as the result of program quality assessment.
A radio broadcasting business license shall have a term not exceeding seven years;
A television broadcasting business license shall have a term not exceeding fifteen years;
In case of an expiry of the license under paragraph two, the licensee shall submit a renewal application at least ninety days but not more than one year prior to the license’s expiration date, whereas in case of an expiry of the license under paragraph three, the licensee shall submit a renewal application at least ninety days but not more than two years prior to the license’s expiration date.
Upon receiving the application under paragraph four, the Commission shall consider and notify the applicant of the order within sixty days as from the date of receiving the application, during which time the licensee may continue to operate its service until the Commission notify the licensee of a termination order. In issuing a termination order, the Commission shall charge the business fee proportionately to the service provision.
The procedure for license renewal application and license renewal approval under paragraph four and paragraph five shall be in accordance with the criteria, procedures, conditions and duration prescribed by the Commission.
Section 19. The license fee shall be prescribed by the Commission under the law on the organizations to assign radio-frequency spectrum and to regulate the sound broadcasting, television broadcasting and telecommunications services.
The licensees shall pay the fee annually for using radio-frequency spectrum and operating the radio and television broadcasting business by type of license at a rate determined by the Commission.
The setting of the business license fee under paragraph two shall not pose undue burden to the operators or the service users. The Commission shall have due regard to public interest, optimization, scarcity and allocation procedure of such resources.
The Commission may reduce or exempt the applicants or the licensees under this Act from fee or tariff charged for the licenses under paragraph one and two if the person can demonstrate to the Commission that his radio or television broadcasting service provides news and documentaries which are beneficial to the public in a higher proportion than that prescribed by the Commission.
The criteria and procedures under paragraph four shall be in accordance with the regulation prescribed by the Commission.
Section 20. In operating radio and television broadcasting business, the Department of Public Relations, Type One and Type Three Public Services License holders shall not generate revenues from advertisements except from advertisements or dissemination of news related to works or operations of a state agency or state enterprise, association, foundation or other juristic person intended for public benefit and non-profit undertaking or posing image of the organization, company and business without directly and indirectly advertising qualifications, usefulness or quality of related products, in accordance with the criteria prescribed by the Commission.
In operating radio and television broadcasting business, Type Two Public Services License holders shall generate revenues from advertisements sufficient only for the undertaking without emphasis on profit making.
Section 21. In operating radio and television broadcasting business, the holders of license to operate community services shall be prohibited from generating revenues from advertisements.
Section 22. The Commission shall prescribe the duty of the holders of business license to make annual allocation into the Fund at a rate prescribed by the Commission which shall not exceed two percent of gross revenues derived from direct and indirect advertisements and other revenues related to the licensed radio and television broadcasting business.
In case of the undertaking on a subscription basis, the annual allocation under paragraph one shall be calculated from the subscribers’ fees, gross revenues derived from direct and indirect advertisements and other service charges related to the service provision to the subscribers in accordance with the criteria prescribed by the Commission.
Section 23. In operating the business, the operators may generate revenues from advertisements, business service provision, subscribers’ fees or any other sources.
In case of the undertakings under paragraph one which are composed of advertisements and business service provision, the Commission shall have the power to prescribe in notification regarding the criteria of the nature and the maximum amount of time that may be devoted to advertising and business service provision but this shall not exceed twelve and a half minutes per hour and the total amount of time for advertisements for a whole day shall not exceed an average of ten minutes per hour.
For the operations on a subscription basis or collection of other service charges under paragraph one, the provision of Section 28 shall apply mutatis mutandis.
The licensee may change the subscription rate or service charges and conditions of service provision in accordance with the criteria prescribed by the Commission under paragraph three but this shall not affect the right of the subscribers within the period under the existing agreement.
In notifying the criteria under paragraph two and three, the Commission shall have due regard to the cost of service provision and fair competition among the different types of licensees as well as fairness to both the licensees and the consumers.
Section 24. The licensees shall furnish financial status report which contains true and correct revenues and expenses to the Commission in accordance with the criteria prescribed by the Commission.
Part 2
Radio or Television Broadcasting Business Not Using Radio-Frequency Spectrum
Section 25. The operators of radio or television broadcasting business not using radio-frequency spectrum shall possess qualifications and not have disqualifications under Section 8, Section 14 and Section 15.
In determining the qualifications or disqualifications of the applicant for a license, the criteria and procedures as prescribed in Part 1 on Radio or Television Broadcasting Business Using Radio-frequency Spectrum shall apply mutatis mutandis.
Section 26. In the approval of radio and television broadcasting business license under Section 25, the provisions of Section 18 and Section 19 shall apply mutatis mutandis.
Section 27. For the benefit of the supervision and regulation of the radio and television broadcasting business not using radio-frequency spectrum, notwithstanding it operates on a subscription basis or collection of service charges, the Commission shall have the power to prescribe in notification the following criteria:
(1) proportion of program and program chart;
(2) generation of revenues;
(3) record of program that had been aired and duration of record keeping.
Section 28. In the operation of the licensees who carry on radio and television broadcasting business that does not require the use of radio-frequency spectrum business which operates on a subscription basis or collection of other service charges, the Commission shall have the power to prescribe in notification the criteria for collection of service charges, maximum amount of time that may be devoted to advertisements and business service provision, and conditions of service provision.
In generating revenues from advertisements and business service provision under paragraph one, the Commission shall allow the maximum amount of time that may be devoted to advertisements and business service provision at not more than six minutes an hour and the total amount of time for advertisements and business service provision for a whole day shall not exceed an average of five minutes an hour.
In determining the maximum amount of time under paragraph two, the Commission shall have due regard to the consumer protection, competition in the market, cost of services and fair competition between the licensees of the radio or television broadcasting business that requires the use of radio-frequency spectrum business and the licensees of the radio or television broadcasting business that does not require the use of radio-frequency spectrum.
The provisions of Section 22, Section 23 paragraph one and paragraph four, and Section 24 shall apply to the licensee under Section 25 mutatis mutandis.
Part 3
Management of Station
Section 29. In operating the radio or television broadcasting business, the licensees shall appoint a person of Thai nationality as the director of each station to supervise and oversee the broadcasting in line with the license and to be responsible for the oversight of the programming, program featuring and broadcasting of the station in compliance with the laws and notifications prescribed by the Commission.
Section 30. The licensees shall be liable to any conduct of the station director in the oversight and management of the radio or television broadcasting business as if it is their own conduct unless it is proven that they take no part in or give no consent to such action and reasonable caution has been taken for the prevention thereof.
Part 4
Prevention of Monopoly
Section 31. To prevent any person from abuse of dominant power in the manner of restriction of opportunity to obtain public news and information derived from diverse sources or committing any act in the manner of monopolizing simultaneously diversified categories of mass media, the licensees shall be prohibited from cross-holding in the same category of business or holding cross media in the radio and television broadcasting business using frequencies in excess of the proportion prescribed by the Commission.
In the case that any licensee is in violation of the Notification of the Commission under paragraph one, the Commission shall have the power to order the licensee for the correction thereof within ninety days so that his business shareholding is in accord with the said Notification.
Section 32. To promote free and fair competition and to prevent the licensee from committing any act that leads to monopoly, reduction or restriction of competition in the radio or television broadcasting business, the business operation of the licensee shall be subject to the law on business competition and specific measure prescribed by the Commission according to the nature of radio or television broadcasting business.
An act of monopoly, reduction or restriction of competition in the radio or television broadcasting business shall include stakeholding in related business or utilization of materials or equipment specially installed to receive sound or visual signals in the manner of anti-competitive conduct.
CHAPTER II
Radio and Television Broadcasting Business Programs
Section 33. The licensees operating radio and television broadcasting businesses using radio-frequency spectrum shall set up the following program chart:
(1) The licensees operating public services shall set up news or documentary programs which are useful for the public in a proportion of not less than seventy percent;
(2) The licensees operating community services shall set up news or documentary programs which are useful for the recipient community or locality in a proportion of not less than seventy percent;
(3) The licensees operating business services shall arrange news or documentary programs which are useful for the public in a proportion of not less than twenty-five percent.
Licensees operating business services at regional and local levels shall have their own produced programs in the proportion prescribed by the Commission.
News or documentary programs for public interest under paragraph one shall include news programs, programs for promotion of knowledge and understanding on democratic regime of government, programs for promotion of education, ethics, arts and culture, and provision of knowledge and understanding in social and economic development, quality of life and environment.
Section 34. The licensees shall arrange program chart in conformity with the objectives of the licensed undertaking as prescribed by the Commission regarding each type of license.
In case of compelling necessity to protect children and juvenile, the Commission may prescribe in notification duration for broadcasting of certain programs.
The licensees shall submit program chart to the Commission at least fifteen days prior to the commencement date of their radio or television broadcasting services.
In the case where the Commission deems that the program chart fails to comply with the criteria prescribed by the Commission, the Commission shall order the licensees for the correction thereof. When the Commission has approved the program chart so corrected, the licensees may commence the radio or television broadcasting services in line with the program chart so approved by the Commission.
In the case where the licensees wish to change the program chart earlier approved by the Commission, such chart shall be submitted to the Commission for consideration at least seven days prior to the change and the provisions of paragraph four shall apply mutatis mutandis.
In case of compelling necessity and urgency, the licensees may proceed with the program deviating from the chart in accordance with the criteria prescribed by the Commission.
Section 35. In the case where there is disaster or emergency or any other case as prescribed by the Commission, which is of necessity to broadcast or announce a warning to the public and upon request by the Government or relevant state agencies, the licensees shall perform as requested.
Section 36. For the benefit of the promotion and protection of the disabled and underprivileged’s right to access or learn and make use of the radio and television broadcasting programs equally to general individuals, the Commission shall set forth certain basic measures to ensure that the licensees make available suitable services for the benefit of these particular groups.
The Commission may set forth any additional measures for the licensees to act forthwith as appropriate. The Commission may consider providing financial support from the Fund or subsidies or promotion by any other means.
With a view to making the measures set out under paragraph one suitable for the disabled and the underprivileged, the Commission shall hold hearings or enhance their participation in the formulation of the measures.
The services suitable for the benefit of the disabled and the underprivileged according to paragraph one may include a broadcasting service that provides a full time book reading program or television program providing sign language interpreter, scrolling display or audio description for the public news programs.
Section 37. Broadcasting of programs containing issues induced to overthrow the democratic regime of government with the Monarchy as Head of the State or having effects on the national security, peace and order or morality of the public or having the nature of obscene or serious deterioration of the physical or mental health of the people shall be prohibited.
The licensee shall have the duty to examine and suspend the broadcasting of programs having the nature according to paragraph one. If the licensee fails to act on such duty, a member assigned by the Commission, either verbally or in writing, shall have the power to suspend the broadcasting immediately and the Commission shall conduct an investigation for fact finding on the matter without delay.
In the case where the Commission finds the said act is due to the licensee’s negligence, the Commission shall have the power to order the licensee for the correction thereof as appropriate or to suspend or revoke the license as the case may be.
Section 38. The licensees shall cause to record the programs being broadcast in a tape or other audio-visual materials or by any means that may be replayed and shall retain the materials for inspection by the competent official.
Respective programs which are subject to recording under paragraph one and duration for record keeping shall be in accordance with the Notification prescribed by the Commission. The said duration must be at least thirty days and shall not cause undue burden on the licensee.
CHAPTER III
Promotion and Control of Professional Ethics and Protection of Party Damaged By the Operation of Radio and Television Broadcasting Businesses
Section 39. The Commission shall undertake to promote a formation of the licensees, producers and mass media professionals engaging in radio and television broadcasting businesses into various forms of organizations whose duty is to set ethical standards for the occupation or profession and to set forth occupational or professional self regulation under the ethical standards.
The formulation of ethical standards of the organizations under paragraph one shall have due regard to the protection of public access to news and information and consumers’ protection in relation to the radio and television broadcasting businesses including protection of rights and liberties of the organization’s professional and occupational members.
In the control of the organization’s occupation or profession under paragraph one, each organization under paragraph one shall set up an Ethical Control Committee with the composition and due regard to the proper proportion of occupational and professional members, academics and external experts.
The organization under paragraph one which has put in place the ethical standards may be supported by the Commission through the Fund as prescribed under Section 52.
Section 40. A person getting damage from the program broadcasting false information or in violation of rights, liberties, dignity, reputation, family or privacy rights of other person may file a complaint with the Commission.
The Commission shall forward the case together with its opinions to the organization controlling the occupation or profession under Section 39 for the remedy of the damaged party without delay. The Commission shall monitor the conduct of the organization controlling the occupation or profession under Section 39. Upon receiving report from the organization thereof, the Commission shall inform the complainant of the result without delay.
The result undertaken under this Chapter shall be regarded as part of the action under Section 51(1).
CHAPTER IV
Installation of Basic Network,
Access and Interconnection of Broadcasting Network
Section 41. In operating radio and television broadcasting businesses under the provision of Section 49, if the licensees have to set up or erect poles, or lay lines, place ducts, or install any other associated equipment, and require to exercise the rights under this Section, the licensees shall submit a diagram indicating details on direction and boundary profile of setting up or erecting poles, laying lines, placing ducts, and installing associated equipment to the Commission for the approval prior to the implementation.
When the Commission has approved according to paragraph one, the licensees shall have the right to proceed whereby the provisions of Chapter IV of the Telecommunications Business Act, B.E. 2544 (2001) shall apply mutatis mutandis. Powers and responsibilities of the National Telecommunications Commission shall be the powers and responsibilities of the Commission under this Act and any rights and duties that are binding on the licensees to operate the telecommunications business shall be the rights and duties of the licensees under this Act.
In the case where any act which, according to the provision of Chapter IV of the Telecommunications Business Act, B.E. 2544 (2001) is prescribed to be an offense and for which a punishment is imposed, the same shall apply to the licensees with the same penalties.
Section 42. The network owner shall have the duty to allow the licensees to access to, or interconnect with his or her network in accordance with the criteria and procedures prescribed by the Commission.
Refusal of the access to or interconnection with the network can be made only in the following cases:
(1) The existing network is insufficient for the access or interconnection by other licensees;
(2) The access or interconnection may affect the national security;
(3) The access or interconnection may cause interference or obstruction to broadcasting business of other network owners or users;
(4) Any other cases as prescribed by the Commission.
The network owner who refuses the access to his or her own network under paragraph two shall have the duty to prove his or her grounds for such refusal.
Charges for network access or interconnection shall be reasonable and fair for the network owner and for the licensee who requests for the network access or interconnection. There shall also be non-discrimination among those who request for the network access or interconnection.
In prescribing the criteria and procedures under paragraph one, the Commission shall hold hearings from the licensees and network owners concerned.
Section 43. In the case where there is a refusal of the access to or interconnection with broadcasting network, or there is an unsettled dispute in contract negotiation for the network access or interconnection, the parties shall have the right to request for the decision of the Commission in accordance with the criteria and procedures prescribed by the Commission. The decision of the Commission shall be final.
The decision to allow the access or interconnection under paragraph one shall take into account safety and measures to prevent any damage that may be incurred.
During the consideration of the Commission under paragraph one, if there is probable cause to believe that the refusal of the access to or interconnection with the broadcasting network is not in accordance with Section 42 paragraph two, the Commission may order the temporary network access or interconnection in accordance with the criteria and procedures prescribed by the Commission.
Section 44. The contract concerning the network access or interconnection shall contain the provisions with the following descriptions:
(1) It shall not cause a discrimination or obstacle to other licensees;
(2) The technical specifications at the access point or point of interconnection shall be clearly stated, technically feasible and shall not cause undue burden to the person who requests for the access or interconnection;
(3) The duties and responsibilities of the person requesting and the person providing network access or interconnection shall be clearly stated;
(4) Charges for the network access or interconnection shall be set in accordance with Section 42 paragraph four;
(5) Any other descriptions as prescribed by the Commission.
The network owner shall submit a copy of the contract to the Commission within ten days as from the date of contract signing. If the Commission deems that the provisions in the said contract are not compliant with the descriptions in paragraph one, the Commission shall have the power to order for the amendment within the specified period. The network owner shall act as ordered by the Commission. However, if the person who requests the access or interconnection of the broadcasting network refuses to amend the contract, it shall be deemed that the contract becomes invalid.
Section 45. The network owner shall publicly disclose the contract for the network access or interconnection including the charges thereof in accordance with the procedures prescribed by the Commission.
Section 46. In the case where there is a change to the facts which has caused the charges for the network access or interconnection no longer be compliant with Section 42 paragraph four and the parties are unable to reach agreement thereon, the parties may submit a request to the Commission for a decision. The decision of the Commission shall be final.
Section 47. The network owner shall provide correct information necessary for the access or interconnection of the broadcasting network to the licensee who requests the access or interconnection.
The network owner shall not commit any act that obstructs normal access or interconnection of the network under paragraph one.
In case of any modification to the network that may affect network access or interconnection, the network owner shall notify the licensee who requests the access or interconnection of the network. However, if such modification may cause impacts on service users, the network owner shall notify the modification thereto at least six months in advance.
Section 48. For the benefit of the consumers in receiving radio or television broadcasting service and environmental protection, if the government agencies, state enterprises or other state agencies in charge of the land, premises, buildings, poles or other similar structures located at a place suitable for transmission or broadcasting of sound or visual signals have permitted the use for any licensees or network owners in the installation of materials or apparatus for the transmission or broadcasting of sound or visual signals, the same shall be granted to other licensees or network owners, provided that appropriate remuneration has been made. The provision of Section 44 shall apply mutatis mutandis.
Government agencies, state enterprises or other state agencies in charge of the property under paragraph one may refuse the use of land, premises, buildings, poles or other similar structures by any licensees or network owners only in the following cases:
(1) The additional installation of materials or equipment will cause hazard or interference to or minimizing efficiency of the existing system;
(2) The act may cause undue burden or obstruction to the use of the property.
Section 49. The access or interconnection between the radio and television broadcasting business and the telecommunication business shall be in accordance with the criteria and procedures prescribed by the Joint Committee under the law on the organizations to assign radio-frequency spectrum and to regulate the sound broadcasting, television broadcasting and telecommunications services.
Section 50. Licensees under this Act or licensees granted a license to operate telecommunications business under the law on telecommunications business or network owner are prohibited from providing transmission or broadcasting public news and information services or programs with the nature of broadcasting business to other persons who are not the licensees under this Act.
CHAPTER V
Promotion and Development of Radio and Television Broadcasting Businesses
Section 51. For the purpose of promoting and developing the radio and television broadcasting businesses, the Commission shall carry out the following conducts;
(1) assessment of efficiency and results of the radio and television broadcasting business under the Master Plan for Radio and Television Broadcasting Businesses and the undertaking under this Act, expression of diverse opinions, service provision for the disabled and the underprivileged, complaint handling and opportunity for market entry of new operators;
(2) assessment of program quality with due regard to social benefit and morality of the people;
(3) holding public hearings to gather opinions from licensees, professionals and consumers in the undertaking under (1) and (2).
The assessment under paragraph one shall be in accordance with the criteria and procedures prescribed by the Commission which at a minimum shall demonstrate facts in terms of effectiveness, efficiency, organizational development, public support and other details as necessary.
Section 52. If the Commission deems that any program is of public interest or the production of the program should be promoted or any operator has taken the measure on the promotion and protection of the disabled and underprivileged’s rights under Section 36, the Commission may consider subsidizing related expenses out of the Fund in accordance with the criteria prescribed by the Commission.
CHAPTER VI
Regulatory Enforcement
Section 53. When there is probable cause to suspect that there is an act in violation of or non-compliance with this Act, the Commission and the competent official shall have the powers as follows:
(1) to summon the parties concerned to give information or to deliver any document or evidence for consideration;
(2) to address a writing to summon any person to give statements or to deliver any document or objects for consideration or for use as evidence in proving the commission of an offense under this Act;
(3) to enter a building or operating site of the licensee or any persons between sunrise and sunset, or during the business hours of such place for the purpose of fact finding concerning the violation, search for objects used in the offense, objects of which possession is an offense or objects to be used in the commission of an offense including any action that may violate this Act or fail to comply with the prescribed licensing conditions;
In the entry into a building or operating site of the licensee under (3) for the fact finding performed by the Commission and the competent official, a search warrant issued by the Court must be obtained.
After having entered and made inspection under (3), if the inspection has not been completed, the competent official may continue the inspection even after sunset or after business hours.
Relevant person shall facilitate the performance of duties of the Commission or the competent official as appropriate.
The performance of duties of the Commission or the competent official under this Section shall be in accordance with the criteria prescribed by the Commission.
Section 54. In the performance of duties, the competent official shall present identification card to the persons concerned.
The identification card shall be in accordance with the form prescribed by the Commission.
Section 55. In the case where any person has caused interference to the transmission or broadcasting of sound or visual signals of the licensees, the competent official shall have the power to order the person to refrain from committing such act or to modify the devices used for committing such act or to remove the said materials out of the disturbance area or to order the person or other person to take certain action as necessary for the correction thereof. In the case where the interfering materials are businesses for which permits have been granted under other laws, the competent official shall notify the authority in charge of such laws for consideration and correction.
Section 56. In the performance of duties under this Act, the members and the competent officials shall be officials under the Criminal Code.
CHAPTER VII
Penal Provisions
Part 1
Administrative Enforcement
Section 57. The following administrative fines shall apply:
(1) Administrative fine category one shall not be over fifty thousand Baht;
(2) Administrative fine category two shall be at least fifty thousand Baht but not exceed five hundred thousand Baht;
(3) Administrative fine category three shall be at least five hundred thousand Baht but not exceed five million Baht.
Section 58. The licensee or any person -
(1) violating or failing to comply with the criteria prescribed by the Commission under Section 24;
(2) violating or failing to comply with Section 44 paragraph two or Section 47 paragraph one or paragraph three;
(3) violating or failing to comply with the order of the Commission under Section 44 paragraph two;
shall be liable to administrative fine category one.
Section 59. The licensee or any person -
(1) violating or failing to comply with Section 34 paragraph five, Section 35 or Section 38;
(2) violating or failing to comply with the criteria, procedures, measures or notifications prescribed by the Commission under Section 34 paragraph one, Section 36 or Section 45;
(3) violating or failing to comply with the order of the Commission under Section 34 paragraph four or Section 37 paragraph one;
shall be liable to administrative fine category two.
Section 60. The licensee or any person -
(1) violating or failing to comply with Section 47 paragraph two, Section 38 paragraph one or Section 50;
(2) violating or failing to comply with the criteria or notifications prescribed by the Commission under Section 22, Section 23, Section 34 paragraph two or Section 42 paragraph one;
(3) violating or failing to comply with the order of the Commission under Section 43;
shall be liable to administrative fine category three.
Section 61. In the case where the offense liable to administrative fine is a sequential offense and the Commission has imposed administrative fine for such offense, the offender shall be liable to the following fine on a daily basis as from the date of the issuance of that administrative fine order throughout the period of the violation or failure to comply or until the rectification of which has been made;
(1) Administrative fine category one shall not exceed five thousand Baht per day;
(2) Administrative fine category two shall not exceed twenty thousand Baht per day;
(3) Administrative fine category three shall not exceed fifty thousand Baht per day.
The Commission shall undertake to enforce fine payment every fifteen days.
Section 62. The Office shall be responsible for the gathering of facts related to the offense liable to administrative fine and referring the matter to the Commission for the purpose of inflicting administrative penalty for the offense in accordance with the criteria and procedure prescribed by the Commission.
In determining administrative penalty, the Commission shall have due regard to the circumstances of the commission of the offense and damage caused by such act. The Commission may reprimand the offender without imposing administrative fine in the case where the Commission is of the opinion that such act is of the following descriptions;
(1) being an offense which is liable to administrative fine category one;
(2) not a sequential offense;
(3) being an offense committed for the first time and not by intention;
(4) no damage incurred.
Section 63. When the Commission has ordered the imposition of administrative fine penalty on any licensee, the Commission may order the licensee, where appropriate, to act or to refrain from any act to prevent repeated violation or commission of the offense.
Section 64. The Commission may suspend or revoke the license when it appears the following facts;
(1) The licensee has neglected to act in accordance with the Commission’s order in compliance with Section 31 or Section 63;
(2) The licensee has violated Section 37 and being the case of serious damage;
(3) The licensee has committed repeated violation or offense under this Act or failed to comply with the criteria or order stipulated in this Act or being the case of serious damage;
(4) The licensee has violated or committed an offense which is liable to criminal penalty under this Act;
(5) The licensee has been determined by a final judgment of committing an offense relating to broadcasting work in violation of copy rights under the law governing copy rights;
(6) The licensee has undertaken business in violation of Section 15.
Any license suspension order shall be as prescribed by the Commission but shall not exceed thirty days in each time.
Section 65. In the case where the person who is subject to administrative fine refuses to pay the administrative fine or fails to pay a full amount, the provision relating to administrative enforcement under the law on administrative procedure shall apply mutatis mutandis.
Part 2
Criminal Penalties
Section 66. Any person who operates radio or television broadcasting business or uses radio-frequency spectrum for broadcasting business or provides services other than radio or television broadcasting business without obtaining permission shall be liable to imprisonment for a term not exceeding five years or a fine not exceeding five million Baht or both, and an additional amount not exceeding fifty thousand Baht for each following day when the violation has not been corrected.
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Section 67. Any licensee who violates Section 9 or fails to comply with the Notification of the Commission prescribed under Section 31 or Section 32 shall be liable to imprisonment for a term not exceeding three years or a fine not exceeding three million Baht or both, and an additional amount not exceeding thirty thousand Baht for each following day when the violation has not been corrected.
Section 68. Any licensee who causes interference to the transmissions or broadcasting of sound and visual signals of other licensees shall be liable to imprisonment for a term not exceeding three years or a fine not exceeding three million Baht or both, and an additional amount not exceeding thirty thousand Baht for each following day when the violation has not been corrected.
Section 69. Any person who causes interference to the transmissions or broadcasting of sound and visual signals of the licensees shall be liable to imprisonment for a term not exceeding three years or a fine not exceeding sixty thousand Baht or both and an additional amount not exceeding ten thousand Baht for each following day when the violation has not been corrected.
Section 70. Any person who produces, imports, sells or has in possession for sale or undertakes installation of receiver, devices or apparatus for the use of other person to receive or adapt the signals for the reception of radio or television services which operate on a subscription basis without permission from the Commission shall be liable to imprisonment for a term not exceeding two years or to a fine not exceeding two million Baht or to both.
The provision of this Section shall not apply to the possession or use of receivers, devices or apparatus under paragraph one for the purpose of research and education so permitted by the Commission.
Section 71. Any person who obstructs or fails to facilitate the performance of duties of the Commission or the competent official under Section 53 shall be liable to imprisonment for a term not exceeding one month or a fine not exceeding one thousand Baht or both.
In the case where it appears the commission of any of the offenses under this Act, the Commission shall be deemed as the damaged party under the Criminal Procedure Code.
The provision of this Section shall not bar the right of the true damaged party to file charge or take any legal action against such offender.
Section 72. In the case where the offender is a juristic person, if the commission of an offense of that juristic person is due to the act or refraining from the act in the capacity of managing director, manager or any person responsible for the operation of that juristic person, that person shall also be liable to the penalty as provided for such offense unless such action is proved to be committed without his or her acknowledgement or consent.
Transitory Provisions
Section 73. In an interim period, for the benefit of public relations of the state, the provisions of Chapter I Operations of Radio and Television Broadcasting Business, Chapter IIRadio and Television Broadcasting Business Programs, Chapter VI Regulatory Enforcement, and Chapter VII Penal Provisions, except Section 20, Section 35, Section 36 and Section 38, shall not apply to the Public Relations Department as the government agency responsible for public relations. It shall continue the radio and television broadcasting businesses according to the existing scope of services until the presence of the Master Plan for Radio and Television Broadcasting Business.
When the Master Plan for Radio and Television Broadcasting Business comes into effect, the Commission shall inform the Minister who has the power to oversee the Public Relations Department of the nature, categories and scope of business operation of the Public Relations Department as stated in the Master Plan for Radio and Television Broadcasting Business in order to perform in accordance with the Master Plan for Radio and Television Broadcasting Business.
Section 74. Government agencies, state enterprises and other state agencies operating radio or television broadcasting business on the date this Act comes into force shall continue the broadcasting business until the date set in the Master Plan for Radio and Television Broadcasting Business takes effect. If the government agencies, state enterprises and other state agencies wish to continue the business, a broadcasting business plan should be submitted to the Commission for a license application. The Commission shall issue license to the government agencies, state enterprises and other state agencies with due regard to the necessity of business operations and the usage of frequencies.
Section 75. If the government agencies, state enterprises and other state agencies have granted authorization, concession or contract to any person as a broadcasting business operator prior to the date this Act comes into force, that person shall have the right to continue the broadcasting business under the existing scope and right associated with such authorization, concession or contract until their termination.
The Commission shall grant a license to operate the business under this Act to the persons who have been granted authorization, concession or contract by the government agencies, state enterprises and other state agencies under the existing categories and scope of operation associated with such authorization, concession or contract. The license to operate the said business shall be valid for the remaining period of validity of that authorization, concession or contract and be exempted from license fee under Section 19.
The provisions of Section 16, Section 17, Section 18, Section 19 and Section 22 of this Act shall not apply to the licensees under paragraph two.
Section 76. The Ministry of Finance shall transfer into the Fund revenues in the amount equal to two percent of the revenues accrued from granting of authorization, concession or contract to operate the broadcasting business prior to the date the Constitution of the Kingdom of Thailand B.E. 2550 (2007) comes into force that Government agencies, state enterprises and other state agencies are required to contribute to the Ministry of Finance, until the termination of the authorization, concession or contract.
Section 77. When the five-year period has lapsed as from the date this Act comes into force, the Commission shall revise the maximum amount of time that may be devoted to advertisements and business service provision under Section 8 but not exceeding the maximum amount of time that may be devoted to advertisements and business service provision specified under Section 23 paragraph two.
Section 78. During the pending establishment of an independent public authority having the duty to allocate frequencies and supervise radio broadcasting, television broadcasting and telecommunication businesses under Section 47 of the Constitution of the Kingdom of Thailand, the National Telecommunications Commission under the Organizations to Assign Radio-frequency Spectrum and to Regulate the Sound Broadcasting, Television Broadcasting and Telecommunications Services Act, B.E. 2543 (2000) shall temporarily perform duty of the Commission under this Act and shall have the duties and powers as follows:
(1) perform as prescribed in the Provisional Chapter in an orderly manner;
(2) grant a provisional license for the operators of community radio broadcasting and business undertaking that does not require the use of radio frequencies as prescribed by the Commission. The community radio broadcasting and business undertaking license that does not require the use of radio frequencies shall have a term of not more than one year;
(3) prescribe proportion of programs and approve program chart of the licensees under (2);
(4) oversee the sound transmission or broadcasting of the licensees under (2) in accordance with the specified transmission power and coverage area.
Section 79. In performing the duties under Section 78, the Commission shall have the power to appoint a broadcasting sub-committee consisting of:
(1) Permanent Secretary of the Prime Minister’s Office as the chairperson;
(2) Permanent Secretary of the Ministry of Defense or representative, Permanent Secretary of the Ministry of Education or representative, the Council of State or representative, Director General of the Public Relations Department or representative, Director General of the Department of Provincial Administration or representative, Secretary General of the Office of the National Culture Commission or representative, and Commissioner General of the Royal Thai Police or representative, as the members;
(3) Six qualified experts appointed by the Cabinet, three of whom from those who have expertise and experience in communication arts, journalism or mass communication, two in public law, one from communication technology or other related field and beneficial to the supervision of the businesses, as the members;
(4) Qualified experts appointed by the Commission from the President of the Council of the Mass Communication Faculty Members of Thailand or representative, Chairperson of the Thai Broadcast Journalists Association or representative, Chairperson of the Federation of Radio Broadcasting and Radio Television Profession Association or representative, President of the National Council for Child and Youth Development or representative, Chairperson of the NGO Coordinating Committee on Rural Development or representative, President of the Council of Disabled People of Thailand or representative, and President of the Federation of Consumer Agencies or representative, as members.
Secretary General of the National Telecommunications Commission shall be a member and secretary of the sub-committee.
The sub-committee under paragraph one shall have the duty in making recommendations and perform other acts as entrusted by the Commission and shall have duties and powers under Section 53.
The law on administrative procedure on the parts relating to meeting, the performance of duties and vacating office shall apply mutatis mutandis to the sub-committee.
Section 80. The performance of duties of the National Telecommunications Commission under Section 78 and the Broadcasting Sub-committee under Section 79 shall terminate as from the date the commission or committee of the independent regulatory body under Section 47 of the Constitution of the Kingdom of Thailand takes office but this is without prejudice to the businesses permitted or undertaken by the National Telecommunication Commission and the Broadcasting Sub-committee during the performance of duties in accordance with this Provisional Chapter.
Countersigned by:
General Surayud Julanond
Prime Minister
Remark: - Reasons for the proclamation of this Act are the Government policy to rationalize the public, private and community mass media aiming to make them the true public media and to ensure that the use of the state communication device is for public interest and beneficial for providing political education to the people. The provisions of the Act on the Organizations to Assign Radio-frequency Spectrum and to Regulate the Sound Broadcasting, Television Broadcasting and Telecommunications Services, B.E. 2543 (2000) also set up the National Broadcasting Commission (NBC) to be responsible for the supervision and regulation of radio and television broadcasting and the National Telecommunications Commission (NTC) to be responsible for the supervision and regulation of telecommunications businesses. Upon the proclamation of the Constitution of the Kingdom of Thailand, B.E. 2550 (2007), the key principle with regard to the single independent public authority responsible for frequency allocation and supervision of the said undertakings has been changed. Meanwhile, the efforts to enact the law on broadcasting business will be the foundation for the real reform of the public, private and community mass media in order to achieve public service mission. Hence, in relation to the supervision and regulation of broadcasting businesses, it is compelling necessary to enact a law on broadcasting business as a foundation for the fulfillment of the performance of duties of that independent body. Thus it is necessary to promulgate this Act.