Lex Mundi Telecommunications Regulation Multi-Jurisdictional Survey

Transcription

1 Lex Mundi Telecommunications Regulation Multi-Jurisdictional Survey CONTACT INFORMATION L. Deliveli & K. Kayikci Pekin & Pekin Law Firm 10 Lamartine Caddesi Taksim Istanbul Republic of Turkiye TURKEY 1. What is the name and nature of the regulatory body(ies) in your jurisdiction? To which bodies (if any) are decisions appealed? Under the Electronic Communications Law (Law No. 5809), provision of electronic communications services and/or the establishment and operation of electronic communications network or infrastructure shall be subject to the obtainment of authorization from the Information Technologies and Communications Authority (the Authority ), in the light of the strategies and policies established by the Ministry of Transportation and Communications (the Ministry ). Please note that the Authority is regulated as an independent administrative authority. Appeals to the decisions of the Authority are not addressed in this Electronic Communications Law; however, since such decisions are administrative decisions, based on Article 125 of the Constitution of the Republic of Turkiye and the Law on State Council, they can be appealed at the State Council.

2 2. Has your jurisdiction adopted the WTO Basic Telecommunications Agreement? If yes, with what exceptions, if any? Turkey has committed to the WTO Basic Telecommunications Agreement. The exceptions are no longer relevant. 3. Are operators in your jurisdiction privately or publicly/state owned? In general, operators in Turkiye are privately owned. However, the Undersecreteriat of the Treasury still holds less than 50% of the shares in Turk Telekom and its subsidiaries. 4. What are the primary differences between the regulation of wire line, wireless, satellite, cable and VoIP providers? Under the Regulation on Authorization Regarding the Electronic Communications Sector (the Regulation ), operators who do not require allocation of resources such as numbering, frequency or satellite positioning for the provision of electronic communications services and/or establishment and operation of electronic communications network or infrastructure, shall be authorized upon notification. Provision of satellite communication services, satellite platform services, fixed phone service, cable service, internet service and virtual mobile network service are all governed similarly and shall be provided upon notification to the Authority. 5. Are broadcasters regulated separately from telecoms? Yes, broadcasters are regulated differently than electronic communication service operators. 6. How are satellite earth stations and submarine cable landings regulated? Satellite earth stations are included in the provision of satellite communication service, while submarine transmission infrastructure is included in the definition of infrastructure operating service. They shall be established for the provision of these services and upon notification to the Authority, provided that such operator does not require allocation of resources as mentioned before. It should be also noted that with regard to submarine cable landings, other governmental authorities shall be notified and authorizations from such shall be obtained. 7. How is the radio spectrum generally regulated? Radio spectrum is regulated under the Electronic Communications Law. In addition, recently, a new regulation entitled Spectrum Management Regulation was enacted. Accordingly, spectrums are planned and managed by the Authority within the scope of the above-mentioned law and regulation.

3 8. Are any operators granted exclusivity? Currently, there are no such operators who are granted exclusively. Turk Telekom, which used to be granted exclusively, does not have such rights any more even though it still is the only active fixed line operator. 9. Are anti-competitive practices subject to regulation or general competition (e.g., antitrust) laws? Anti-competitive practices are regulated under the Competition Law (Law No. 4054). In addition, under the Electronic Communications Law, Authority has power to prevent occurrence of anti-competitive practices. In addition, Turkish Competition Board is given power to investigate and control transactions involving electronic communication services, provided that it consults the Authority before reaching a decision in this area. 10. What services have been liberalized or designated as competitive services? After the monopoly of Turk Telekom has ended, all of its services have been liberalized. 11. Are there regulated tariffs or price lists? If so, for what types of services? Under Electronic Communications Law, operators may freely determine the tariffs, which need to be in accordance with provisions of the Tariffs Regulation of the Authority and need to be approved by such. 12. Are there restrictions on foreign investment in any types of communications companies? If so, what are the restrictions? There are no such restrictions on foreign investments. 13. What are the approval processes for mergers and acquisitions? Do these vary by type of operator? Regulation on Authorization Regarding the Electronic Communications Sector (the Regulation ) addresses transfer of authorization, transfer of shares and mergers and acquisitions. When an operator wishes to transfer its authorization, the operator should obtain prior consent of the Authority. The operator must first ensure that the transferee has the qualifications set out in the Regulation and must apply to the Authority with the Notification Form as determined by the Authority, the Right of Use Application Form, if applicable, and other information and documents that may be required by the Authority. Upon Authority s written approval of the transfer of authorization, the transferee shall obtain depending on the type of the authorization, a new Right of Use Certificate or such company shall be registered by the Authority within one month following such approval. An operator authorized under the right of

4 use limited in number should notify the Authority of any transfer, purchase or changes in shares within two months. Similarly, an operator authorized under the right of use not limited in number or an operator authorized through notification shall notify the Authority of any transfer, purchase or changes in shares that result in a change of control within two months. The operator must ensure that the transferee has qualifications set out in the Regulation. In cases of mergers and acquisitions, the merging company or the company being acquired must have qualifications set out in the Regulation and must apply to the Authority with the notification form as determined by the Authority and the Right of Use Application Form, if applicable. If merger or acquisition takes place without such application being made in accordance with provisions of the Regulation, upon the fulfillment of the obligations as outlined in the Regulation within the determined time period, such company may receive its Right of Use Certificate or it may be registered. 14. Is interconnection between carriers mandatory? Under the Electronic Communications Law, all operators, upon demand, are under an obligation to negotiate interconnection arrangements. Upon their failure to reach an agreement, the Authority may provide interconnection to operators. 15. Are interconnection fees/rates regulated? Electronic Communications Law stipulates that interconnection fees may be freely determined by the operators on cost-basis, except for cases explicitly included in the Electronic Communications Law, the Regulation and relevant legislations. 16. Must carriers make available network components to competitors? If so, what are fees/prices based on cost, or market rates? With regard to the provision of network components to competitors, carriers have an obligation to comply with requirements on co-location and facility sharing as determined by the Authority. These fees shall be based on cost-basis and failure to do so shall trigger the Authority to interfere and set these fees taking into account the international applications and/or current fees. 17. Is there an obligation to serve all customers? If yes, is there a fund to subsidize eligible carriers? Which carriers contribute to the fund? Which carriers are eligible to receive these funds? Are broadband services subsidized or otherwise promoted through tax or other incentives? There is an obligation to serve all customers on a non-discriminatory basis. Under Universal Services Law (Law No. 5369), every end-user within the borders of Turkiye has a right to universal services which consist of, without limitation, telephone services at fixed locations, provision of pay phone services and provision of internet services. It is also required that certain measures shall be taken to enable the disabled people and people with low income to access such services. Under this

5 Law, universal services incumbent is defined as any operator that has been authorized by the Authority and that is under an obligation to provide the services regulated under the Universal Services Law. The Ministry shall elect the universal services incumbent among applicant operators by holding a tender, in accordance with the procedure set out in the Regulation on Principles and Procedures regarding Collection of Universal Services Revenues and Payment of Expenses (the Revenues Regulation ). Provisions of the Universal Services Law and Revenues Regulation impose further obligations on such elected universal services incumbents. The Universal Services Law and the Revenues Regulation envisage that the operators shall contribute to the fund created for the purpose of meeting the net cost of universal services incumbent to be calculated in accordance with the Revenues Regulation and the expenditures arising from the performance of the duties to be carried out by the Ministry pursuant to the Universal Services Law. Accordingly, per the Revenues Regulation, the operators other than GSM operators are required to pay 1% of their yearly net sales revenues to the Ministry by the end of April of the following year. 18. Are there mandatory requirements to customer agreements (subscriptions, etc.)? There are requirements such as information and rights of the customers to be contained in the subscription agreements. Also, there is a requirement that a subscriber may terminate a subscription agreement without payment of penalties in case an operator amends the subscription agreement. These are set out in more detail in the Electronic Communications Law. 19. Are there any general or telecommunication specific requirements as to data retention? Under the Regulation, operators are under the obligation to retain all data including number of users, identity information, and period of contacts, as well as other data pertaining to the contacts carried out through such operator s infrastructure, for one year. 20. Is number portability mandatory? If so, for which types of carriers (e.g., wireline, wireless, voice over internet protocol)? Under a recently enacted regulation entitled Number Portability Regulation, upon a subscriber s request, number portability shall be completed. According to this regulation, geographical numbers, non-geographical numbers and mobile numbers are within the scope of number portability. 21. Is equal access dialing selection mandatory? If yes, for which types of carriers? Electronic Communications Law requires that operators that fall within the scope of the Electronic Communications Law are under an obligation to provide all consumers

6 and end-users who are in similar conditions with the same services without any distinctions. The Authority shall determine procedures and methods governing this requirement. 22. Is access or other contributions ( ADCs ) required of new entrants? All obligations of new entrants are set out in the Electronic Communications Law and the Regulation. Depending on the service such new entrant intends to provide, different obligations are imposed. However, there are no requirements such as access or other contributions attributable to every new entrant. Obligations imposed on access providers are set out by the Authority. 23. Is VoIP regulated? If yes, to what extent? Under the Electronic Communications Law, electronic communications is defined as the transmission, emission and receipt of all kinds of signs, symbols, voices and images and all kinds of data convertible into electricity signals through and via cable, wireless, optic, electrical, magnetic, electromagnetic, electrochemical, electromechanic and other transmission systems. Therefore, VoIP falls within the scope of this definition and is regulated similarly. 24. Are any major changes to telecommunications laws expected in the near future? There have been recent amendments to these laws. Therefore, we do not see any other major amendments to them except for any complimentary changes necessary. 25. Is resale of telecom services permitted? If yes, is this activity regulated? What is the process to become a reseller? Are foreign companies permitted to be resellers? Resale of telecom services is permitted and has been regulated under the Electronic Communications Law. Becoming a reseller is subject to obtainment of authorization from the Authority as described in the above questions. Foreign companies may become resellers in the Turkish electronic communications market by incorporating a company in Turkiye and obtaining the necessary authorization or by acquiring the shares of a company which has already obtained an authorization in Turkiye.