Turkey: Groundbreaking Telecommunications Law: Secondary Legislation So Far

1 Introduction

As mentioned in our article "Groundbreaking telecom law to come into effect in May 2009" (which was published in the Last Quarter 2008 Edition of The Turkish Update), some of the changes considered by the groundbreaking Electronic Communication Law No.5809 (the Law) which was published in the Official Gazette on 10 November 2008 need implementation through secondary legislation. This article looks at some of the secondary legislation which has been drafted by the new Information and Communication Technologies Authority (ICTA) so far.

2 Regulation on Authorisations on Electronic Communication Sector published on 28 May 2009

As previously mentioned, the Law clarified and simplified the previous system of regulatory authorisation for electronic communication providers. It did this by requiring companies looking to launch electronic communication services, networks and infrastructures to get ITCA authorisation either by prior notice or by gaining a "right of use".

• Prior notice: any company looking to launch electronic communication services, networks and infrastructures has to give notice to ITCA before they start activities.
• "Right of use": ITCA will decide which type of electronic communication services, networks and infrastructures need to get a "right of use" (as well as provide prior notice). The Law provides that a "right of use" should be held if an electronic communication service needs ITCA to grant a scarce resource (such as a number, frequency or satellite position) for the service to work.

"Rights of use" are finite (they can be granted for a maximum of 25 years) and will usually be granted by ITCA within 30 days of application. However, the application may take longer than this where the application is about service where ITCA only allows a limited number of service providers. For example, if the application is for a GSM licence (which are limited in number by the ITCA) the process may take longer and the application may be subject to separate specific legislation or tender specifications.

This Regulation sets out in further detail the procedures and features of gaining a licence from ITCA for electronic communication services, networks and infrastructures, some of which we briefly summarise below.

2.1 Eligibility

(a) General requirements (see Article 7(1) of the Regulation)

A legal entity which applies to the ITCA for authorisation (an Applicant) should meet certain requirements which include

• an Applicant entity should be a Turkish joint stock company or a limited liability company;
• the Applicant's scope of business (as set out in its Articles of Association) should clearly show: "establishment and operation of electronic communication services, networks and infrastructures" as well as the particular electronic communication activity for which it asks for authorisation; and
• not more than 5 per cent of the Applicant's shareholders should have been found guilty of certain crimes (e.g. terror crimes, crimes against the state, money laundering, tax evading etc).

(b) Requirements for an Applicant for a service where the ITCA only allows a limited number of service providers (see Article 7(2) of the Regulation)

An Applicant which applies for authorisation for a service where the ITCA only allows a limited number of service providers should satisfy the following requirements:

• an Applicant entity should be a Turkish joint stock company and all its shares should be registered shares;
• the Applicant's scope of business (as set out in its Articles of Association) should clearly show: "establishment and operation of electronic communication services, networks and infrastructures" as well as the particular electronic communication activity for which it asks for authorisation; and
• as mentioned above, there may be other specific requirements set out in relevant specific legislation and/ or the tender specifications.

2.2 Fees

The Regulation sets out fees as follows:

• Administrative fee: 0.35 per cent of the net sales revenue of the Applicant/Operator (see Article 16 of the Regulation). ITCA has the right to decrease or increase this rate as it thinks necessary but, according to Article 11 of the Law and Article 16 of the Regulation, this fee cannot exceed 0.5 percent of the net sales revenue of the Applicant/Operator; and
• "Right of use" fee: the minimum values of these fees shall be determined by the Council of Ministers on the proposal of ITCA and the decision of the Ministry of Transport.

The fees for Applicants which apply for authorisation for a service where the ITCA only allows a limited number of service providers shall be determined by ITCA and ITCA may reconsider such fees and revise them as it thinks necessary.

3 Numbering Regulation published on 27 June 2009

As number allocation is a scarce source, ITCA was authorised to make a national numbering plan under the EC Law. Therefore ICTA adopted this Regulation with the aim of regulating numbering allocation policies in greater detail. Please let us know if you would like further information on the detail of this Regulation.

4 Regulation on the Devices with Electronic Identity published on 27 June 2009

This Regulation introduced some duties for mobile phone operators to tackle the cloned mobile telephones problem. However, many Turkish mobile telephone producers feel that it did not go far enough to deal with this problem. Please let us know if you would like further information on the detail of this Regulation.

5 Regulation on the Use of Turkish Language on Short Messaging Services (SMS) published on 16 May 2009 and came into force on 1 July 2009

This Regulation states that both device producers and the operators shall enable their devices/services to allow the use of Turkish characters (e.g. "ç,ğ,ö,ü, etc). ITCA shall be the responsible body to ensure the application of the SMS Regulation.

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.