The National Communications Commission’s (NCC) decision to reject Tatung Infocomm’s (大同電信) application to renew its license might be overturned if the Worldwide Interoperability for Microwave Access (WiMAX) service provider appeals to the Executive Yuan, a source familiar with the matter said yesterday.
The commission last month ruled to reject Tatung’s license renewal application on the grounds that it built only 681 base stations for its WiMAX service, falling short of the 1,837 base stations the company had promised in its operational plan. Though the company argued that it had failed to deliver the number of base stations stated in its plan because no international manufacturers were producing base stations for WiMAX any more, the commission found an Israeli manufacturer that is still producing WiMAX base stations.
Citing Article 46 of the Regulations for Administration of Wireless Broadband Access Business (無線寬頻接取業務管理規則), the commission rejected Tatung’s license renewal application, saying there was no justifiable reason for the company to not complete its system construction plan or execute the responsibilities stated in the plan.
NCC Deputy Chairperson Yu Hsiao-cheng (虞孝成) and NCC Commissioner Peng Shin-yi (彭心儀) disagreed with the commission’s final ruling.
However, NCC Chairperson Howard Shyr (石世豪) supported the ruling.
Vee Time Corp chairperson Richard Lai (賴富源), who acquired Tatung in 2012, yesterday said that the company will definitely appeal the NCC’s decision, without saying when the company would take such an action.
A former NCC official, who declined to be named, said that Tatung is likely to appeal the NCC’s decision at the Executive Yuan first, because the commission did not hold a hearing before it issued the ruling.
The official said that there is a 50 percent chance that the Executive Yuan will return the matter to the NCC for a second review, even though there was no legal problem with the ruling.
The official said the case was reviewed by a preliminary review committee before it reached the commission, but he said Yu’s dissent showed that NCC commissioners were only informed that the majority of preliminary review committee members voted to reject Taitung’s license renewal application, without being told if any committee member had different opinions.
The official said that the ruling could contradict the spirit stated in Article 6 of the Fundamental Communications Act (通訊傳播基本法), which stipulates that the government should encourage innovation in communication technologies and should not impose any restriction on innovation without proper cause.
“As the technology evolves, so must the commission allow the telecom service operators to upgrade their technology. If the commission insists that the operator use the old technology, it might contradict the spirit stated in Article 6,” he said.
The official said the NCC staff should have also consulted the Ministry of Economic Affairs and presented its opinions to commissioners for consideration, as it was the ministry that pushed for the launch of the WiMAX service in Taiwan in the first place.
Regarding the upgrading of the technology, Shyr said Tatung should revise its operational plan if it wants to upgrade from WiMAX 1.0 to WiMAX 2.01 because the operator is essentially changing the technology it uses to offer service.
Peng said that the commission should not consider itself a “gatekeeper” with he power to determine the legitimate evolution of the technology.
Neither should the commission insist on the difference between “technology upgrade” and “technology change,” she said, as the regulation does not distinguish between the two concepts.
However, Yu questioned whether the operator was clearly informed that it can purchase equipment of an upgraded technology.
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