Introduction
This article gives a synopsis of broadcasting in Turkey from a legal perspective. It initially discusses alternative broadcast mediums in Turkey, followed by an explanation of how to set up a broadcasting company, and finally examines broadcasting content requirements and the consequences of violating them.
Legal Framework
Radio and television broadcasts remained a State monopoly in Turkey until 1994, when the a central piece of legislation governing private radio and television broadcasts in Turkey was passed; "The Law on the Establishment of Radio and Television Companies and Their Broadcasts"1 (the Law). This law removed the State monopoly and lead to a boom in privately owned radio and television companies. The Law mainly dealt with the establishment and the operation of private radio and television companies and also occasioned the creation of the "Radio and Television High Board"2 (RTUK) to supervise these companies. Although the Law has been amended various times, it still remains in force.
A number of secondary regulations governing various broadcast-related topics have been passed under the Law, relating to the licences and permits required in order to run different types of broadcast companies, including:
- the Satellite Regulation3;
- the Cable Regulation4; and
- the Allocation of Frequency Regulation5,
as well as a host of other regulations on broadcasting law subjects varying from content requirements (the Content Regulation6), to the regulation of Close Circuit TV (the CCTV Regulation7).
The "Administrative and Financial Conditions Regulation"8 sets out the minimum pre-conditions required of radio and television broadcasting companies, regardless of the broadcasting medium, in order to be established. This regulation is fundamental to the establishment or the share transfer of any broadcasting company in Turkey.
Turkey also ratified the European Convention on Transfrontier Television in 1993 along with its additional protocol that entered into force on 1 March 2002, aiming to facilitate cross-border transmission and retransmission of television programme services. Broadcasting companies must comply with this convention.
How do you broadcast in Turkey?
Establishing a Turkish broadcaster
According to the Law, only those companies licensed by RTUK are entitled to engage in radio and television activities in Turkey, which effectively means broadcasting or playing content from Turkey. RTUK is authorised to grant broadcasting licences and permits for national, regional or local terrestrial broadcasting, satellite broadcasting and cable broadcasting. RTUK has not granted terrestrial broadcasting licenses and permits since the tender for the allocation of channels was cancelled. As the companies that broadcast in the terrestrial medium currently conduct these broadcasts on a de facto basis, in practice RTUK only grants satellite and cable broadcasting licenses and permits. There are various pre-conditions for obtaining these licenses/permits, which are explained in section 3 below.
Broadcast agreements with Turkish satellite and cable platform operators
In order to avoid the requirement to establish a Turkish broadcasting company and obtaining licences and permits from RTUK, foreign broadcasting companies can broadcast content into Turkey by entering into agreements with Turkish satellite and/or cable platform operators. Foreign broadcasting companies are not required to obtain a licence or permit from RTUK before entering into an agreement with platform operators for the use of their cable-satellite network. This practice is also considered to be in line with the European Convention on Transfrontier Television Broadcasting and has been accepted by the newly promulgated Cable regulation.
It should, however, be emphasised that broadcasting companies may only transmit their broadcasts into Turkey via cable or satellite networks. The Law provides that terrestrial frequencies, channels and cable capacity may not be allocated to radio and television companies that broadcast from abroad.
Setting up a broadcasting company
The following criteria must be met in order to obtain these licenses from RTUK.
Restrictions applicable to all broadcasting companies
1. Must be a joint stock company (a Company)
Only companies are able to hold broadcasting licenses or permits, not individuals. Among the different types of companies accepted under Turkish law (e.g. limited liability company (Limited Sirket), collective companies (Kollektif Sirket) etc.) only joint stock companies (Anonim Sirket; a company that has a minimum of 5 shareholders and a high minimum capital requirement compared to other companies) established for special purposes (i.e. radio & television broadcasting, communications, education, culture and art) are entitled to hold broadcasting licenses and permits.
2. Maximum one television and one radio station per Company
3. A broadcasting Company may only operate one television channel and one radio station.
Restrictions on permitted activities and Company shareholders
The Law also sets restrictions on the activities of the companies that may obtain broadcasting permits and as to who may be shareholders of such companies. Accordingly, political parties, associations, unions, professional associations, co-operatives, foundations, local administrations or companies, partnerships or associations established or participated by these and companies that conduct production, investment, import, export, marketing and financial affairs etc. activities may neither establish nor be shareholders in broadcasting companies.
4. The Company must have registered shares
The shares of radio and television companies must be registered shares (i.e. have the owner's name written on them). Privileged shares (Imtiyazli Hisse Senedi) and usufruct (Intifa Senetleri) are not permitted. Where "privileged shares" are those shares that grant superior rights to their holders compared to other shares, "usufruct shares" grant a right to financial returns from the company but do not, in principle, give management rights. These provisions are aimed at preventing hidden ownership of radio and television companies and to ensure RTUK's ability to supervise broadcasting companies. Broadcasting companies are subjected to close supervision and restrictions due to the fact that they are in a position to influence public opinion.
Foreign ownership restrictions
1. The situation under the Law
The Law sets further ownership restrictions which are applicable only to foreign entities and to foreign persons. In this respect, foreign entities and/or foreign legal persons can:
- hold a maximum 25% of the shares of a company; and
- are only able to own shares in one such company.
Foreign ownership restrictions are established with the intention of limiting foreigners' influence and control over Turkish broadcasting companies.
2. Proposed changes to foreign ownership rules under the Law
RTUK is currently considering a draft law which will, if passed, relax many of the Law's provisions, such as the 25% limit on foreign ownership.
Broadcasting Content Requirements
Sources of the law
Broadcasting quotas and content requirements are mainly set out in:
- the Law;
- the Content Regulation; and
- the European Convention on Transfrontier Television Broadcasting.
Under Article 29 of the Content Regulation, broadcasting companies must, in principle, allocate programming in the following ways:
- 5% to educational programming;
- 5% to cultural programming; and
- 5% to Turkish folk and classical music programs.
The European Convention on Transfrontier Television also provides that a majority of a broadcasting company's transmission time should be allocated to European works, excluding time allocated to news, sports events, games, advertising, teletext services and tele-shopping.
Some of the Content requirements
1. Public service
It is important that radio and television broadcasts are conducted in a spirit of public service. Consequently, broadcasting should not be exercised in a manner that serves the unfair interests of the broadcasting company or its shareholders etc. and should not lead to unfair competition. Furthermore, broadcasts should be compliant with, among other things, national security and general moral values.
2. Turkish language
Broadcasts should, in principle, be in the spoken form of the Turkish language and should be made without contravening its characteristics or rules. Subtitles for special purposes such as stock exchange data, weather forecasts, breaking news events, translation from a foreign language or branding and advertising may only be used if they comply with certain criteria (e.g. if they do not reduce the quality of the program).
3. Advertising
Advertisement broadcasts should be announced clearly. Advertisements should not be deceptive, misleading or lead to unfair competition. Advertisements aimed at children should be compliant with additional principles, e.g. they must not make statements or visual presentations that may mislead children regarding the actual dimensions, value, features etc. of an advertised product.
4. Impartiality and clarity
Broadcasts should respect the standards of impartiality, conformity and reliability in news programmes and should not prevent the free formation of opinions. Facts and interpretations should be clearly distinguished within news programs and interpretations should not misrepresent facts. Where news stories have been provided by agencies or another media source, this should be indicated.
5. Public competitions
Broadcasts should not include contests or competitions encouraging viewer participation via telephone and no prizes should be awarded to listeners or viewers. Lotteries are forbidden and telephone questionnaires / opinion polls should be done in conjunction with a notary from the preparatory stage to the announcement of the results.
Consequences of Violation
If a broadcasting company violates the restrictions above it may be subject to criminal sanctions, penalties imposed by RTUK, or both.
If a broadcasting company breaches its responsibilities or violates the conditions of its licence or content requirements, RTUK may initially warn the broadcasting company and request it to apologise to the public through the same broadcast medium.
If the broadcasting company does not comply with this request, or repeats a similar violation, broadcasting of the program may be suspended. A program can be suspended for anything from one to 12 times. When a program is suspended, a program prepared by RTUK on education, culture, traffic, women, children's rights, the physical and moral development of youth, the fight against drugs, appropriate use of the Turkish language or environmental education is broadcast in its place.
If the violation is repeated administrative penalties will be imposed on the broadcasting company. The amount of the penalty will depend on the type of broadcasting license held by the broadcasting company. If the violation is repeated once within a one year period starting from the date of the first violation the administrative penalty will be increased by 50 per cent. However, if a violation is repeated twice again within that one year period, the broadcaster's licence will be suspended for up to one year, with the length of suspension dependant on the gravity of the violation.
In the event that a broadcasting company violates some of the most vital broadcasting principles (e.g. the territorial and national integrity of the State) the company's broadcast rights will be suspended for one month without warning. In the event of the violation being repeated again, the broadcast will be suspended for an indefinite period and its broadcasting license will be cancelled.
Conclusion
Turkey has a population of 71,158,647 (July 2007 est.), a GDP of $378.4 billion (2006) and an annual GDP growth rate of 7.4% (2005). The audiovisual media sector for this massive market is rapidly developing, fuelled by Turkey's potential inclusion in the EU.
The legislative authority and RTUK are playing their part by updating the legislation and regulations to correspond with their European counter-parts, with new satellite and cable broadcasting regulations adopted in 2007. This atmosphere has led many multinational broadcasting companies to enter the Turkish market over the past few years. New broadcasting technology is also being closely monitored in Turkey and it is anticipated that significant steps will be taken towards introducing IPTV and Digital Terrestrial Television in the coming years. From a legislative side, an amendment to the Law is also currently being discussed which aims to reduce the number of restrictions on foreign ownership.
Taking these improvements into account, it is likely that the Turkish audiovisual media market will continue to develop at a fast pace and will flourish in the coming years.
Footnotes
1. Radyo ve Televizyonların Kurulus ve Yayinlari Hakkinda Kanun.
2. Radyo ve Televizyon Ust Kurulu.
3. The "Regulation on the Licenses and Permits For Satellite Broadcasts" (Uydu Yayin Lisans ve Izin Yonetmeligi).
4. The "Regulation on the Licenses and Permits For Cable Broadcasts" (Kablolu Yayin Lisans ve Izin Yonetmeligi).
5. The "Regulation on the Conditions for the Allocation of Channel or Frequency for Radio and Television Companies and Their Tender Procedures and Broadcasting License and Permit" (Radyo ve Televizyon Kuruluslari Kanal veya Frekans Tahsisi Sartlari ve Bunlara İliskin İhale Usulleri ile Yayin Lisansi ve Izni Yonetmeligi).
6. The "Regulation on the Principles and Procedures for Radio and Television Broadcasts"; Radyo ve Televizyon Yayinlarinin Esas ve Usulleri Hakkinda Yonetmelik).
7. The "Regulation on the use of Close Circuit Television"; (Kapali Devre Radyo ve Televizyon Yayinlari Yonetmeligi).
8. Özel Radyo ve Televizyon Kuruluşları Idari ve Mali Sartlar Yonetmeligi.
Guner Law Office was established in 1996 and has since grown into one of the major corporate, M&A, banking, litigation, energy and TMT practices in Turkey. Guner Law Office is headed by Ece Guner and works with international law firm Denton Wilde Sapte.
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.
