Turkey: Turkish Telecom On The Move: The Brand New Authorization Regulation And Other Major Draft Telecommunications Regulations

Since 2005, legislative developments in the telecommunications sector have continued to evolve within the context of Turkey's European Union ("EU") accession process. Turkey has taken significant steps toward market liberalization, one being the enactment on 10 November 2008 of the Electronic Communications Law ("Communications Law"), aimed at creating a de-regulated sector to keep up with technological developments and EU practice.

The Communications Law necessitates a series of further amendments within the secondary legislation, and even replacement of old legislation – notably, the Regulation on Authorization of Telecommunications Services and Infrastructure ("Old Authorization Regulation") and the Access and Interconnection Regulation ("Old Interconnection Regulation") – with a whole series of new regulations. While the Authorization Regulation regarding the Electronic Communications Sector ("Authorization Regulation") was duly adopted and replaced the Old Authorization Regulation, it is expected that remaining new regulations will be issued towards the second half of 2009 to properly streamline the secondary legislation and make it compatible with the Communications Law.

This article provides an overview of the most significant pieces of secondary legislation in this fast-moving area, namely the Authorization Regulation and Draft Access and Interconnection Regulation ("Draft Access and Interconnection Regulation").

I. LICENSING REGIME INTRODUCED BY THE COMMUNICATIONS LAW AND DETAILED IN THE AUTHORIZATION REGULATION

Apart from the section related to the authorization of the sector players, the provisions of the Communications Law have been in effect since its enactment. The authorization-related section entered into force only recently, on 10 May 2009. Subsequently, on 28 May 2009, the Authorization Regulation was duly adopted and deemed to be in full effect as of 10 May 2009. It replaced the Old Authorization Regulation.

Prior to the enactment of the Communications Law, telecommunications services were rendered under authorization, issued pursuant to the Authorization Regulation within the categories of (i) concession agreements, (ii) telecommunications licenses, and (iii) general authorization. Following entry into force of the authorization-related section of the Communications Law, new authorization concepts – namely, notification and right to use – are introduced and detailed under the Authorization Regulation.

With respect to "notification" as a form of authorization introduced by the Communications Law, the Authorization Regulation requires legal entities providing electronic communication services or laying down an electronic communication network or infrastructure without requesting any resource allocation (e.g., number, frequency or satellite position) to notify the Information Technology and Communications Authority, the regulatory body supervising the telecommunications sector in Turkey ("ITC Authority"), in advance. As of the date of registration of the relevant notification with the ITC Authority registry, the applicant entity is deemed authorized to perform telecommunications services that do not require scarce resource allocation. In case the ITC Authority identifies outstanding documents or irregularities in the notification file of an entity, it must inform the applicant entity of such issues within a maximum of two weeks following registration of notification.

The second feature of the authorization regime in the Authorization Regulation concerns legal entities' right to use electronic communication services. The ITC Authority is entitled to determine whether any category of electronic communication services should be deemed "scarcely resourced," and thus whether "right to use" should be granted to a limited number of operators. The ITC Authority may limit the number of operators enjoying the right to use the relevant electronic communication services in order to achieve effective and productive utilization of relevant resources by a limited number of operators. In such case, the ITC Authority will take into consideration public opinion, international practices, and market conditions in the Turkish telecommunications sector.

In the event the ITC Authority decides to limit the right to use, the Ministry of Transportation will determine the authorization policy regarding satellite position, utilization of national radio frequency bands, and electronic communication services to be offered by a limited number of operators. The ITC Authority will then grant the relevant authorization. The operators' right to use services with scarce resource allocation will be determined through a tendering process.

"Right to use" may also be granted to operators that would not be limited by number. In the event the ITC Authority determines that it is not necessary to allocate scarce resources, the ITC Authority will grant a right to use following review of the relevant operators' applications. Upon submission of their applications, operators will be required to pay relevant fees within three months, and following such due payment, the ITC Authority will issue the relevant authorization certificate within 30 days.

Term Of Authorization Under The Authorization Regulation

Under the Authorization Regulation, the authorization certificate for a "right to use" can be issued for a maximum term of 25 years. In order to renew or extend the term of their certificates, operators should apply between 6 to 12 months prior to the expiration of the term of their certificate. In relation to "notification," telecommunications services within the scope of notification can be performed as long as the operator continues to be registered with the ITC Authority.

Authorization Fee Regime Under The Authorization Regulation

The Authorization Regulation states that authorization fees will consist of both administrative and right-to-use fees. The administrative fee is the operators' contribution to administrative expenses, including: market analysis, monitoring, regulation and implementation; auditing of operators; technical and all other supervisory work; international cooperation; and integration and standardization work. The administrative fee will correspond to 0.35% of operators' net sales pertaining to the relevant operational term. The ITC Authority is entitled to increase or alternatively decrease this percentage by 0.5% of the maximum, based on the operators' net sales pertaining to the preceding year.

The Authorization Regulation states that minimum applicable fee levels for the right to use will be determined by the Council of Ministers upon the proposal of the ITC Authority. The Authorization Regulation states that the operators' right to use services with scarce resource allocation will be determined through a tendering process, whereas fees for services that do not require any resource allocation will be independently determined by the ITC Authority, which is entitled to revise fees at any time based on reasonable, transparent, proportional and non-discriminatory grounds.

To complement the authorization process, a Council of Ministers decree entered into force on 26 May 2009. The decree details minimum calculation figures that will be taken into consideration for determining minimum "right to use" fees of frequencies and numbers that do not require allocation of scarce resources. Different calculation figures and methods are provided for calculating the right to use wireless services for common use and national and international radio link frequency. In determining minimum figures for the number of right - to - use services, different categories – including geographical numbers, mobile numbers, mobile network code, international and national point code, data network definition code, etc, – are listed. The minimum right - to - use fees may be increased on an annual basis depending on re-evaluation figures determined by the Ministry of Finance.

Transfer Of Authorization – Transfer Of Shares Under The Authorization Regulation

Operators intending to transfer their authorization will apply to the ITC Authority with the relevant required documentation in order to obtain the approval of the ITC Authority. Within one month following approval by the ITC authority in this respect, the right-to-use certificate will be issued on behalf of the transferee, or the transferee will be registered within the scope of notification.

Operators authorized within the scope of a limited right to use will inform the ITC Authority with respect to any kinds of share transfers, whereas operators authorized within the scope of an unlimited right to use or notification will inform the ITC Authority only with respect to share transfers triggering change of control within a maximum of two months. The ITC Authority, while examining share transfers, takes into consideration current market conditions, competition conditions and market share of the relevant operator.

II. DRAFT ACCESS AND INTERCONNECTION REGULATION

The Interconnection Regulation will be replaced with the Draft Access and Interconnection Regulation, within the scope of harmonizing the secondary legislation with the Communications Law. It is expected that the Draft Access and Interconnection Regulation will not be adopted earlier than the second half of 2009. Currently, provisions of the Interconnection Regulation are applicable to interconnection and access transactions.

Terminology And Definitions Under The Draft Access And Interconnection Regulation

The terminology used in the Interconnection Regulation is amended as per the Draft Access and Interconnection Regulation in line with the terminology of the Communications Law, e.g., the term "telecommunications services" is replaced with "electronic communications services"; "user" is replaced with "subscriber." Certain definitions are also included under the Draft Access and Interconnection Regulation, including "Access Obligor," "Carrier Pre-election" and "Carrier Election Code."

Under the Interconnection Regulation, "interconnection" is defined as the connection of two networks for the provision of telecommunications traffic between two different telecommunications networks possessed by different operators. However, the Draft Access and Interconnection Regulation defines "interconnection" as the physical and logical connection of electronic communications networks used by the same or different operators in order to provide (i) access to the services provided by different operators, or (ii) connection between the same or different operators' subscribers.

Interconnection And Access Obligation

According to the Interconnection Regulation, operators with significant market power ("SMP") in the telecommunications market are obliged to provide interconnection to their networks as requested by other operators. The Interconnection Regulation imposes the obligation to provide interconnection services on the operators with SMP. In addition, the ITC Authority may designate the operators as the interconnection obligor if refusal to provide interconnection services by the operator causes certain conditions adverse to the subscribers or prevents formation of a competitive environment.

In relation to the access obligation, it is stated that operators with SMP may be obliged to provide access if the ITC Authority determines that such operators' refusal to provide access is causing certain conditions adverse to the subscribers or preventing formation of a competitive environment. In this respect, according to the Interconnection Regulation, operators with SMP are obliged to provide interconnection as requested by other operators and may be obliged to provide access under certain conditions.

However, the Draft Access and Interconnection Regulation includes a new provision, "Imposition of Obligation," stipulating that operators with SMP – apart from "provision of interconnection," "joint localization" and "facility sharing" – may be obliged to provide access and election of carrier. In this respect, the Draft Access and Interconnection Regulation deletes the provision of interconnection obligation of such operators with SMP and, in deleting this, imposes the obligation for all operators to negotiate interconnection with each other upon request. In case of a disagreement between parties to interconnection negotiations, the ITC Authority may impose a provision of interconnection obligation on operators.

The access obligation of the operators with SMP remains the same under the Draft Access and Interconnection Regulation.

Interconnection And Access Tariffs

According to the Interconnection Regulation, the operators determine interconnection and access tariffs independently in line with the principles indicated in the Interconnection Regulation. The ITC Authority may request from the operators determination of cost-based tariffs. If the ITC Authority determines that the tariffs are not cost-based, then the ITC Authority may determine the tariffs. The tariffs determined by the ITC Authority are binding. In the Draft Access and Interconnection Regulation, the provisions regarding the interconnection and access tariffs remain the same for the most part.

The interconnection tariffs applicable as of 1 May 2009, in accordance with the decision of the ITC Authority dated 25 March 2009, are determined as (i) Türk Telekom interconnection tariffs: 1.31 kuruş plus taxes per minute for local calls; 1.71 kuruş plus taxes per minute for calls within the area; and 270 kuruş plus taxes per minute for calls outside of the area; (ii) Turkcell interconnection tariffs: 6.55 kuruş plus taxes per minute; (iii) Vodafone interconnection tariffs: 6.75 kuruş plus taxes per minute; and (iv) Avea interconnection tariffs: 7.75 kuruş plus taxes per minute.

Dispute Resolution

The Interconnection Regulation states that if the operators cannot reach mutual agreement within three months upon submission of an interconnection or access demand, they are entitled to initiate the conciliation process before the ITC Authority. Following commencement of the conciliation process, the parties will have six weeks to reach a mutual understanding with the assistance of the ITC Authority. The ITC Authority may extend this period for a term of four weeks. If the parties cannot agree within such term, then the ITC Authority's resolution on the subject matter will be binding on both parties.

The Draft Access and Interconnection Regulation amends the dispute resolution process by deleting the initiation of conciliation proceedings for disputes arising from interconnection and applying the conciliation process to access-related disputes. The above-mentioned timeframes are also amended. In this respect, if the operators cannot reach mutual agreement within two months upon submission of an access demand, they are entitled to initiate the conciliation process before the ITC Authority. Following commencement of the conciliation process, if the parties cannot reach an understanding during such conciliation period, the ITC Authority is entitled to decide on the provisions of the access agreement subject to dispute within two months.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions