Communications policy
1 Regulatory and institutional structure
Summarise the regulatory framework for the communications sector. Do any foreign ownership restrictions apply to communications services?
The main legislation governing the communications sector is the Electronic Communications Law numbered 5809 and dated November 05, 2008. (the “ECL”). The ECL provides the main principles regarding the authorisation of the operators, their obligations and the powers granted to the Information and Communication Technologies Authority (the “ICTA”) which is the regulatory authority in the electronic communications sector.
The ICTA has issued and continues to issue regulations which set forth detailed provisions regarding the main principles determined by the ECL. The most important of these regulations is the Authorisation Regulation published in the Official Gazette dated May 28, 2009 (the “Authorisation Regulation”) which details how a company can be authorised to provide electronic communication services or infrastructure in Turkey and what their main obligations are. In addition to the Authorisation Regulation; the Regulation on Customer Rights in the Electronic Communication Sector, the Regulation on Number Portability, the Regulation on Spectrum Management, the Regulation on Wireless and Telecommunication Terminal Equipment and Regulation on Encrypted Communication are other important regulations which provide the obligation that an operator must be aware of.
No foreign ownership restrictions apply to communication services however, the Authorisation Regulation sets forth that only limited liability and joint stock companies established in Turkey can be authorised to become operators. A foreign entity or individual can be the sole shareholder of such a company established in Turkey.
2 Authorisation/licensing regime
Describe the authorisation or licensing regime.
There are two types of authorisation under the Electronic Communication Legislation: (i) notification and (ii) right of use.
For the operations which do not require any allocation of resources from the ICTA, a notification must be made to the ICTA with the required documents about the specifics of the contemplated operation and after ICTA approves that the contemplated operation can be made via such a notification, the applicant company is deemed to be authorized to operate in Turkey. The fact that the applicant company will be deemed an authorized operator only after the approval of the ICTA is due to a recent change to the Authorization Regulation made on July 11, 2016. Before this recent change, an applicant company was deemed an authorized operator when its notification was registered with the ICTA. The main rationale behind the previous version was that for services and infrastructure that does not require any resources, a company should not need the approval of the ICTA but would just make a notification so that the ICTA could keep track of the operator. This new change does not comply with this rationale and provides the ICTA with a stricter control on the market.
If an operation requires allocation of resources from the Regulatory Authority such as frequencies or numbers, then a right of use must be granted by the ICTA in order for that operation to be started. The documents requested by ICTA for right of use applications are a little more than the ones required for the notification process; the applicant company must also provide documents and information in relation to the resources to be allocated to it.
The right of use procedure can be divided in two in itself. If the service or infrastructure that is subject to right of use can be operated by various companies than the procedure set forth in the above paragraph will apply. However, if the service or the infrastructure can be operated by only a limited number of operators, then a tender is made and only the companies which are awarded with the tender can provide the relevant service or infrastructure. The most common example of the electronic communication service that can be operated by only a limited number of operators is the GSM mobile services. There are only three GSM operators in Turkey (i.e. Turkcell, Vodafone and Avea) which have been awarded with their rights of use through tender in different times. The allocation of 3G and 4G spectrum were also made through tenders and the same GSM operators obtained the rights of use for the 3G and 4G licenses.
To give examples for the authorization needed for different types of services; for a fixed line service (e.g. PSTN lines used at homes) that would require allocation of numbers a right of use application must be made, for conventional GSM services a company must wait for the state to open a tender whereas for operation of fiber-optic cables, the notification procedure mentioned above must be followed.
As regards the fees; for the notification process an administrative fee of 0.35% of the yearly net sales must be paid to the ICTA and for the right of use process, in addition to the administrative fee, the specific fee for the relevant resource to be used in the operation must be paid. For example, for fixed line operators requiring number allocation, the operators must pay the fees determined for the numbering blocks that they require. Furthermore, the operators must make yearly payments of Universal Service Fee in the amount of 1% of their yearly net sales.
3 Flexibility in spectrum use
Do spectrum licences generally specify the permitted use or is permitted use (fully or partly) unrestricted? Is licensed spectrum tradable or assignable?
The permitted use is not unrestricted; the spectrum licenses are given by the ICTA and the permitted use of the spectrum is specified. The operators which would like to use spectrum for their operation must apply to the ICTA and request for the allocation of spectrum. If this request is accepted, the spectrum is allocated and registered with the database of the ICTA. If a person or legal entity, which is not an operator, but which would like to install a device that uses a spectrum that requires allocation from the ICTA, such person or legal entity must apply to the ICTA and request for allocation as well. Only the devices which operate in the allowed pre-determined spectrum ranges do not require the application for the allocation process set forth above.
Although the legislation does not provide any explicit prohibition of the sale of the allocated spectrum, we believe that it is not possible to trade or sell the allocated spectrum; the operators can only transfer the spectrum allocated to them if they transfer their authorisations.
4 Ex-ante regulatory obligations
Which communications markets and segments are subject to ex-ante regulation? What remedies may be imposed?
No ex-ante regulations can be made in the communications markets.
5 Structural or functional separation
Is there a legal basis for requiring structural or functional separation between an operator’s network and service activities? Has structural or functional separation been introduced or is it being contemplated?
No, currently there is no legal basis for a structural or functional separation between an operator’s network and service activities and there is no draft legislation requiring such a separation.
6 Universal service obligations and financing
Outline any universal service obligations. How is provision of these services financed?
The following services are considered universal services:
- Fixed line telephony services,
- Public payphone services,
- Telephone directory services (printed directories and directories on electronic media),
- Emergency call services,
- Internet services,
- Transportation services for places where the single option for travel is through sea, and
- Communication services regarding sea voyages and safety at sea.
Operators are under the obligation to provide the above stated universal services. The provision of these services is financed through the universal service fee payments made by the operators as mentioned in our response to Question 2 above.
7 Number allocation and portability
Describe the number allocation scheme and number portability regime in your jurisdiction.
Number portability is a right provided to subscribers of the electronic communication services which require allocation of numbers. Upon the request of the subscriber, the operator must allow for the subscriber to become a customer of another operator without changing his/her number or to change his/her address without changing the number. There is no cross portability obligation between fixed line services and GSM services; a customer of a fixed line telephone service cannot request to use the same number for a GSM service and a customer of a GSM service cannot request to use the same phone number for a fixed line telephone service. A customer cannot request to keep the same geographical number if he/she changes the address to a geographical location different than the one represented by his/her geographical number. For example, a person using fixed line telephone services in Istanbul with a number starting with the geo-code of 0212 (the code for Istanbul) cannot request to keep the same phone number if he/she moves to Izmir (which uses a geo-code starting with 0232).
8 Customer terms and conditions
Are customer terms and conditions in the communications sector subject to specific rules?
Yes, customer terms and conditions between subscribers and operators are subject to the Regulation on the Customer Rights in Electronic Communication Sector. In accordance with this regulation, the customers have the following rights:
- accessing to services under the same terms with similar customers and benefiting from the services with fair prices without any discrimination,
- entering into agreements with the authorized operators,
- requesting that their personal data be or not be included in publicly available directories,
- benefiting from the directory services free of charge or for a price and being able to register with the directories without any discrimination,
- being informed of the emergency call services and accessing to those services free of charge,
- requesting itemized invoices,
- requesting information about the scope of the services to be provided by the operators,
- accessing to clear, detailed and current information on the tariffs to be applied to the customers and being informed of any change to those tariffs before such change is applied,
- opting out by a simple way or by original way of application to the service, from all the services under the campaigns or tariffs including value added services that they opted in through sms, call centre, or internet,
- requesting equal treatment without any discrimination in relation to resolving the malfunction problems,
- receiving services in the standards determined by the ICTA or by international institutions.
Another important obligation arising from the Customer Rights Regulation is that the agreement between the customer and the operator must be made in writing.
9 Net neutrality
Are there limits on an internet service provider’s freedom to control or prioritise the type or source of data that it delivers? Are there any other specific regulations or guidelines on net neutrality?
There is no specific clause regarding net neutrality under Turkish legislation, however Article 4(1)/j of the ECL sets forth that the operators must remain neutral while providing services. Although it is not crystal clear whether the “neutral” mentioned under the ECL refers to neutrality as in the net neutrality, we believe it should be interpreted in that way. Furthermore, the ICTA made a decision against one of the ISPs in Turkey due to the fact that it restricted access to certain websites without any order to do so from the authorized courts and institutions. That decision shows that the ICTA accepts the net neutrality principle and restricting access to certain websites or applications without any legal background is prohibited.
10 Platform regulation
Is there specific legislation or regulation in place, and have there been any enforcement initiatives, relating to digital platforms?
Yes, although web-based solutions and platforms can be freely established, there are two main laws regulating the content published on those platforms.
The Law on Regulation of Electronic Commerce numbered 6563 and dated October 23, 2014 (the “E-Commerce Law”) regulates the content of the online platforms over which commercial transactions are concluded. E-Commerce Law provides obligations on the e-commerce digital platform operators about the type of information to be provided to the customers, provision of a copy of the agreement to the customers and the way the communication must be handled with the customers.
The Law on Regulation of the Publications Made on the Internet and Fighting against the Crimes Committed through such Publications numbered 5651 and dated May 4, 2007 (the “Internet Law”) is the generally applicable law for all content published on the internet. The Internet Law restricts the publication of content constituting certain types of crimes (e.g. sexual abuse, crimes against Ataturk –the founder of Turkish Republic-) and the content violating the rights of third parties.
There are other legislation which can restrict the online content; these are not specific to online content but their scope is extensive so that it covers both online and offline content. For example, online broadcasters are also under the obligation to ensure that their broadcasts that are of the nature to negatively impact the physical, mental or moral development of children or youths must be presented in a method that will ensure that these broadcasts are not – under normal circumstances – heard or seen by children or youths.
11 Next-Generation-Access (NGA) networks
Are there specific regulatory obligations applicable to NGA networks? Is there a government financial scheme to promote basic broadband or NGA broadband penetration?
There are no specific regulatory obligations applicable to NGA networks; the NGA networks are treated the same as every electronic communication infrastructure. There is no government financial support scheme to promote the NGA penetration however, the ICTA releases statements that the NGA penetration should be increased.
12 Data protection
Is there a specific data protection regime applicable to the communications sector?
Yes, Article 51 of the ECL provides specific obligations in relation to protection of personal data in the communications sector. The Regulation on Protection and Privacy of Personal Data in the Electronic Communication Sector (the “Regulation on Privacy”) sets forth more detailed provisions on the protection of personal data in the communications sector. These two pieces of legislation lists certain situations where the personal data of the customers can be processed by the operators only with the consent of the customers and also set forth how the traffic and location data can be processed by the operators without the consent of the customers. One of the interesting points about the ECL and the Regulation on Privacy is that they accept the data of both real persons and legal entities as personal data. Another point to note about this legislation is that the previous version of Article 51 of the ECL had a much narrower scope and had stated only that the matters related to personal data would be governed by a regulation after which the Regulation on Privacy was issued by the ICTA. In 2014, the Constitution Court made a decision stating that a fundamental right such as the protection of personal data cannot be governed by regulations and at least the main principles should be set forth by law. After this decision, Article 51 of the ECL was amended and took its current form. However, no change was made to the Regulation on Privacy and there are some provisions in the two pieces of legislation that conflict with each other. As a country applying the principle of hierarchy of norms, where the two pieces of legislation conflict, the provisions of Article 51 of the ECL should be taken into consideration.
A generally applicable law on protection of personal data has come into force only last year on April 7, 2016 (the “DPL”). The DPL is heavily modelled on Directive 95/46/EC with many of the terms and central provisions very closely mirroring their equivalents in the Directive. Where the ECL does not regulate an issue, the provisions of the DPL should be taken into consideration.
13 Cybersecurity
Is there specific legislation or regulation in place concerning cybersecurity or network security in your jurisdiction?
Both Article 51 of the ECL and Article 12 of the DPL set forth that the operators must keep all the personal data secure and confidential. The DPL sets forth that data controllers (operators) and data processors must take all necessary technical and administrative precautions for establishing the appropriate level of security in order to (i) prevent the personal data to be processed illegally, (ii) prevent the personal data to be accessed illegally and (iii) to safekeep the personal data
14 Big data
Is there specific legislation or regulation in place, and have there been any enforcement initiatives in your jurisdiction, addressing the legal challenges raised by big data?
No, there is no specific legislation in Turkey in relation to big data. The provisions of the DPL will apply to the analyses made on big data or collection of big data itself.
15 Data localisation
Are there any laws or regulations that require data to be stored in locally in the jurisdiction?
Article 51 of the ECL sets forth that traffic and location data can only be transferred abroad with the consent of the customer. The Regulation on Privacy provides a stricter obligation and sets forth that the persona data cannot be transferred abroad. However, as mentioned above, the Regulation n Privacy came into force before the decision of the Constitution Court and have not been amended since the decision. As a result, the provisions of the ECL and the Regulation on Privacy conflict with each other and therefore, the strict restriction of the Regulation on Privacy should not be taken into consideration as applicable in relation to the transfer of personal data abroad. The operators cannot transfer the traffic and location data abroad without the consent of the customers. For the transfer abroad of other personal data, the provisions of the DPL will be applicable. Under the DPL, the general principle with regard to transfer of personal data outside of Turkey is that the explicit consent of the data subject is required. However, in certain additional situations set forth under the DPL, personal data may be transferred outside of Turkey if the country of the recipient provides ‘sufficient safeguards’. If the country where the recipient is located does not provide ‘sufficient safeguards’, the personal data may only be transferred following further approval and authorization by the Turkish Data Protection Board.
16 Key trends and expected changes
Summarise the key emerging trends and hot topics in communications regulation in your jurisdiction.
The most important issue in the communications sector in 2016 was the legislative changes related to the sector which is briefly discussed below:
The most important legislative change was that the minimum capital requirement for all the authorized operators in Turkey was increased to TL 1,000,000. This minimum capital requirement was applied only for specific types of services and infrastructure whereas now any company willing to provide electronic communications services or infrastructure must have a capital of minimum TL 1,000,000. This increase in the minimum capital requirement restricts the entry into and operation in the market. Although, the ICTA states that this change was made so that only the serious players remain in the market, we believe that in the long-term, it will be disadvantageous for the market. The communications is a sector where we see a lot of disruptive technologies and services which may be introduced by small investors or individuals. Most of the time, such a capital requirement cannot be met by these investors or individuals at the beginning and this requirement will discourage the small investors to enter into the Turkish market and may shift the interest of these people to the communication markets in other countries. Combined with the fact that the angel investment or venture investment funds in Turkey are not comparable to the ones in Germany or other countries in Europe, this capital requirement would make the originators of new technologies or services to start their main operations in other countries rather than in Turkey.
Another important change was that the notification requirements on operators increased dramatically. The ICTA requested all the operators to submit various documents and information about their services in September 2016 and continue to provide the same information each year and the documents once in 5 years.
The ICTA cancelled the authorisations of many operators which have failed to comply with the two new obligations set forth above.
Another important amendment is related to the requirement of the approval of the ICTA in the notification process, the details of which have been provided in our response to Question 2 above. In the previous version of the notification process, the company applying for the authorisation would be deemed to be authorized at the time it the proper documents for notification were registered with the ICTA. However, in the current version of the process, the applicant company will be deemed authorized only after the approval of the ICTA.
The ICTA has been working on internal restructuring issues in 2016 and no change in key legislation has been drafted so far.
Media
17 Regulatory and institutional structure
Summarise the regulatory framework for the media sector in your jurisdiction
The main legislative regulations of Turkish Media Law are as follows; the Press Law (Law No. 5187); the Radio and Television Act of Turkey (Law No. 2954); the Law on the Establishment of Radio and Television Enterprises and Their Media Services (Law No. 6112, the Broadcasting Law); the Law on Radio and Television Incomes in Turkey (Law No. 3093); the Law on Regulating Broadcasting in the Internet and Fighting Against Crimes Committed through Internet Broadcasting (Law no.5651, the “Internet Law”) and the Advertisement Regulation of Radio and Television Authority of Turkey.
The Radio and Television Supreme Council (the “RTUK”) monitors the radio and television broadcasts in Turkey. The RTUK is the main independent governmental body for policymaking for and monitoring of the radio and television sectors. As for internet media, the Information and Communication Technologies Authority (the “ICTA”) is the supreme regulatory and supervisory governmental body.
18 Ownership restrictions
Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?
Under Turkish law, some restrictions are applied to ownership and control of broadcasters. One example of it is the article 19/f of the Turkish Broadcasting Law, which mandates that a foreign entity not control more than half of the shares of a broadcasting company established under Turkish law. Furthermore, same foreign entity cannot be the direct shareholder of more than two Turkish broadcasting companies. In a case where a foreign entity is the indirect shareholder of a broadcasting company, following requirements must be met; (a) the chairman, vice chairman and the majority of the board of directors and the general manager must hold Turkish citizenship; (b) the majority of the voting rights in the general assembly must belong to natural or legal persons of Turkish citizenship.
Article 19/f also states that a natural or legal person cannot own shares, whether directly or indirectly, in more than 4 different media service providers. Also, if a natural or legal person is a shareholder of more than one media service provider companies, the annual commercial communication income of said companies cannot exceed the 30% of the total commercial communication income of the sector. If it does, said persons must transfer their shares, within 90 days given by the Supreme Council, in order to decrease their income to a level below the limitation
There are not any specific regulations in relation to cross-ownership of new media platforms.
19 Licensing requirements
What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?
Article 3/hh defines the broadcasting license as the certificate of permission issued separately for each broadcasting type, technique and network by the Supreme Council to media service providers on the condition that they meet the provisions stated in the Law no. 6112 and by-laws and other regulations prepared in accordance with the Law no. 6112 in order to allow them to broadcast using any kind of technology via cable, satellite, terrestrial and similar networks. As this clearly mandates, media services providers must obtain separate licences from RTUK for each broadcasting technique.
Pursuant to the article 19 of the Law no. 6112, broadcast licence can be granted to joint-stock companies established under the Turkish Commercial Code for the exclusive purpose of providing radio, television and on-demand broadcast service. Political parties, labour unions and professional organisations are banned from obtaining a broadcast licence.
The term of a broadcast licence is 10 year and there are not any specific time scale provisions for obtaining authorisation from the RTUK. Licence fees are determined each year by the RTUK and the most recent information can be found here.
20 Foreign programmes and local content requirements
Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media (eg, online, mobile content) fall outside this regime?
As per the article 5 of the Law no. 6112, the general rule is that the broadcast must be in Turkish. However, the languages and dialects other than Turkish can be used for the broadcast as well, on the condition that the broadcast follows the rules of that preselected language.
A restriction placed on content of the broadcast can be found under article 15 of the Law no. 6112 named “European Works”. According to the article, television broadcasters holding a national terrestrial broadcasting licence must allocate at least 50% of their broadcast time to tests, advertisements teleshopping and related data broadcasts; and allocate 10% of their broadcast time or programme budget broadcasts to European works of independent producers, excluding the time allocated to news, sporting events, contests, advertisements, teleshopping and related data. European works are defined as audiovisual works that are produced or co-produced by real persons or legal entities settled in signatory states of the European Convention on Transfrontier Television or in member states of the European Union.
21 Advertising
How is broadcast media advertising regulated? Is online advertising subject to the same regulation?
In Turkey, broadcast media advertising is thoroughly regulated. Major legislative regulations can be found under (a) the Law no. 6112on Establishment of Radio and Television Enterprises and their Media Services, (b) the Regulation on Advertising for Radio and Television (the “Commercial Advertisement Regulation”) (c) Consumer Protection Law No. 6502 and the Regulation on Commercial Advertisements and Unfair Commercial Practices (‘ Commercial Advertisement Regulation’’)
Broadcast media advertising is ruled and supervised by Radio and Television Supreme Council (RTUK) which is an autonomous, impartial public legal entity. RTUK regulates and supervises the radio, television and on demand media services and examines the broadcasts including advertisements in light of the provisions of the Law no. 6112, the European Convention on Transfrontier Television (which Turkey is a member), and the Regulation on the Principles and Procedures of Radio and Television Broadcasts (including advertising principles ).
The online advertising is subject to Commercial Advertisement Regulation which is the general legislation with respect to advertisement rules. Advertisement Board regulates and rules the compliance of advertisements in all media, except the specific broadcasting rules which are governed under Law No. 6112.
22 Must-carry obligations
Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?
There are not any regulations mandating must-carry obligations.
23 Regulation of new media content
Is new media content and its delivery regulated differently from traditional broadcast media? How?
There is no specific regulation with respect to new media content. On-demand content and IPTVs are also regulated under Law No.6112.
Other internet based broadcasting is regulated under Internet Law.
24 Digital switchove
When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?
The digital switchover process is still ongoing in Turkey. The details regarding the freed up radio frequencies and the transition process are regulated under the Law no.6112. As per the provisional article 4 of the Law no.6112, based on their ranks and analogue channel capacities, some of the enterprises which acquire the right to be allocated a digital terrestrial multiplex capacity in the ranking tender will be allowed also to make analogue television broadcasts for a period of two years at most along with their digital terrestrial broadcasts. At the end of the period of two years following the allocation, analogue terrestrial television broadcasts are to be completely terminated all across the country and are to be switched off. In the framework of the allocations and durations allowed by the Supreme Council, Turkish Radio-Television Corporation will transfer its terrestrial radio and television broadcasts from its channels and frequencies into the new channels, frequencies and multiplex capacities
25 Digital formats
Does regulation restrict how broadcasters can use their spectrum (multi-channelling, high definition, data services)?
It does. After obtaining the terrestrial broadcast licenses, present transmitting facilities must be removed by the private media service providers or must be transferred to transmitter procurer and operating company in exchange of a reasonable sum.
Accordingly, the RTUK will transfer the terrestrial radio and television broadcasts, within the time granted by the Supreme Council, from the old channel and frequencies to the newly allocated channels, multiplexes and frequencies.
26 Media plurality
Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?
A natural or legal person cannot be shareholder in more than 4 media service provider entities. Also, if a natural or legal person is a shareholder of more than one media service provider companies, the annual commercial communication income of said companies cannot exceed the 30% of the total commercial communication income of the sector. If it does, said persons must transfer their shares, within 90 days given by the Supreme Council, in order to decrease their income to a level below the limitation. These limitations serve in a tacit way to prevent monopoly in media sector and to protect the media plurality.
27 Key trends and expected changes
Provide a summary of key emerging trends and hot topics in media regulation in your country.
Lately, there has been a major shift in Turkey’s key trends on media and entertainment sector. With the introduction of the internet-based television and on-demand content, media viewership in Turkey has become more dependent on internet rather than traditional broadcasting. The true effect of this change is yet to be reveal themselves, since there have not been any specific regulative actions towards this new type of media viewership.
Regulatory agencies and competition law
28 Regulatory agencies
Which body or bodies regulate the communications and media sectors? Is the communications regulator separate from the broadcasting or antitrust regulator? Are there mechanisms to avoid conflicting jurisdiction? Is there a specific mechanism to ensure the consistent application of competition and sectoral regulation?
In Turkey, communication regulator is entirely separate from the broadcasting and antitrust regulators.
The telecommunication sector is monitored and supervised by the ICTA. The Turkish Competition Authority (the “TCA) is the main competition and anti-trust monitoring authority and it enforces the provision set forth in the Law no.4054 on the Protection of Competition (the “Competition Act”).
Pursuant to the Law no.5809 on Electronic Communications, the ICTA has the competence and authority to conduct an thorough investigation on any action conducted against the competence in electronic communications sector, without prejudice to the provision set forth in Competition Act.
The regulating authority for the broadcasting sector is the Turkish Radio and Television Agency (the “RTUK”) and in some special cases defined under the Law no.6112, the RTUK has the competence and jurisdiction to supervise the competition in the media sector.
The ICTA and the Competition Authority cooperate in relation to the competition issues related to the communications sector. Article 7 (2) of the ECL requires the Competition Authority to obtain the opinion of the ICTA and take into consideration the regulatory actions of the ICTA in relation to the competition matters it handles in the communications sector. Furthermore, the ICTA and the Competition Authority signed a cooperation protocol in 2011 and expanded the scope of the protocol in 2015. The cooperation protocol aims to ensure the cooperation of the two regulatory bodies and avoid conflicts of jurisdiction.
29 Appeal procedure
How can decisions of the regulators be challenged and on what bases (merits, law, procedure etc)?
The ICTA, TCA and RTUK are all independent administrative authorities under Turkish Law, which makes their decisions “administrative decisions”. Administrative law and its procedures are subject to the Code of Administrative Procedures no. 2577. As a general principle of Turkish administrative procedural law, all administrative decision can be challenged before an administrative court, unless the law states otherwise. The time period to bring an action for nullity is 60 days starting from the notification of the decision.
Under the Law no. 2577, an action for nullity against administrative decisions and actions can be brought forward under following circumstances;
- If the administrative decision is not made by the competent governmental body,
- If the form, rationale, subject or the objective of the administrative decision is against the laws.
As it can be seen above, the reasoning of the action for nullity can be both procedural and meritorious. Decisions of the administrative courts can be appealed before the Regional Administrative Courts within 30 day starting with the notification of the court’s decision.
According to the Law on Protection of Competition, decisions of the TCA can be appealed only before the administrative courts of Ankara. This is a special provision creating an exception to the rules brought by the Code of Administrative Procedures. The exception only relates to jurisdiction with relation to forum. The rest is the same with the general rules.
30 Competition law developments
Describe the main competition law trends and key merger and antitrust decisions in the communications and media sectors in your jurisdiction over the past year.
The past couple of years have been quite active in the merger and acquisition side of competition law developments in the media sector. The Turkish Competition Authority (‘TCA’) has seen notifications of takeovers by media agencies/corporations or large groups of smaller agencies/corporations. One such merger notification that was cleared by the TCA was the 2015 takeover of the full control of Enformasyon Reklamcılık ve Filmcilik, otherwise known as CNBC-E, by Discovery (Discovery Medya Hizmetleri Ltd. Şti).
Another such merger that was cleared by the TCA is the takeover of all shares and full control of Pozitron (Pozitron Medya Holding A.Ş) by Krea Production (Krea İçerik Hizmetleri ve Prodüksiyon A.Ş.). Market shares in the television broadcasting market, in which Pozitron was found to be active through Digiturk’s activities – in that Pozitron’s market shares were deemed to have been included in those of their business partner Digiturk- are by principle calculated on the basis of advertising income. Since Pozitron was providing services exclusively for Digiturk, the TCA found no alarming concentration in the takeover in the 2015 decision no. 15-36/540-172.
Further, there has been some activity on antitrust by the TCA; it appears that the TCA has decided to reopen investigations that it had closed, either due to administrative court judgments cancelling the TCA’s decision not to pursue the matter any further or due to change of circumstances.
Diye, a media services provider had notified its activities that entailed measuring media performances under the name of “media barometer” services and selling to actors in the advertising sector had been cleared off competition law concerns in the TCA’s decision of 2014 no. 14-51/900-410. The concern was that the selling of critical and sensitive market information could lead to collusion and eventually a cartel in the advertising and other media sectors. 3 years later in 2017 however, the case came back from the Administrative Court, whose decision was upheld by the Council of State, and investigations were opened again with allegations that the advertising undertakings buying the “media barometer” services have been acting in a buying cartel.
An agreement on Turkish Football Federation’s (TFF) broadcasting rights to be transferred to Digiturk was also subject to antitrust scrutiny by the TCA, but was cleared in the decision of 2015 no. 12-23/659-181. A competing service provider’s application to the administrative court, the agreements conferring exclusive broadcasting rights were once again examined by the TCA in terms of monopoly rights and entry barriers. Clearance was granted in the 2016 decision no. 16-04/82-36 on the condition that commitments for the allowance of sub-licensing, which would help soften the monopolisation of the broadcast of national football.
First published by GTDT in Sep 13, 2017.
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