The nature of random inspection conducted by the NCC does not require notification to be served upon the party concerned to be present(Taiwan)

Frank Sun

The Supreme Administrative Court rendered the 106-Pan-189 Decision of April 20, 2017 (hereinafter, the “Decision”), holding that for random examination conducted by the National Communications Commission, there is no need to notify the party concerned to be present.

According to the facts underlying this Decision, Company A had been granted a wireless broadband access (WBA) license by the National Communications Commission (hereinafter, the “NCC”). Since the license was expiring, application was filed to renew the license (hereinafter, the “License Renewal Application”). The NCC rendered a disposition not to renew the WBA license according to a resolution adopted by a preliminary review committee, which found that although Company A had promised in its business plan to build a total of 1,837 base stations over three phases, only 681 base stations were completed as promised in its business plan, not to mention that as many as 47 base stations (52.22%) of the 90 base stations randomly selected out of the 681 base stations for inspection did not have transmission signals. Dissatisfied, Company A brought administrative action.

According to the Decision, the NCC has authority to conduct administrative inspection to address the needs for telecommunications oversight and supervision and for the administration of telecommunications enterprises. Since base stations are infrastructure for radio wave transmission and radio frequency equipment, they are certainly part of a wireless broadband access system. The NCC has the authority to conduct regular or random inspection of base stations pursuant to relevant laws and regulations. The NCC’s inspection of RF equipment of relevant base stations and the actual presentation of objective mechanic data via instruments are trustworthy due to their technical fairness and objectivity. Since this is the so-called “random inspection” under Article 53 of the Regulations for Administration of Wireless Broadband Access Business, it is not necessary to notify the party concerned to be present pursuant to the provision “otherwise stipulated by law” under Article 3, Paragraph 1 of the Administrative Procedure Law. Therefore, the original decision which found that Article 42, Paragraph 1 of the Administrative Procedure Law was violated for failure to notify Company A to send personnel to participate in the inspection or verification conducted to determine the number of base stations and test their operating status was reversed and remanded on the ground of unlawfulness due to inappropriate application of laws and regulations.