The Electronic Communications Law and the Regulation on the Authorization in the Electronic Communications Sector ("Authorization Regulation") are the main pieces of legislation stipulating the rights and obligations of authorized operators in the electronic communications sector. In the aftermath of the changes in the Authorization Regulation last year, it is observed that there are many problems with respect to compliance of authorized operators with the obligations stipulated under the electronic communications legislation.
To address these compliance issues, the Information and Communications Technology Authority ("ICTA") recently held a meeting with internet service providers and fixed telephone service providers regarding the rights and obligations of authorized operators. In this meeting, the ICTA stated that they have not been very strict in term of compliance with obligations and they have been granting operators time extensions. However, after this meeting, ICTA is expecting strict compliance from the operators and they will start applying sanctions to non-compliant operators.
Therefore, it is beneficial for operators to review their operations in terms of compliance with their obligations under the electronic communications legislation. In this respect, the rights and obligations of internet service and fixed phone service providers under the Electronic Communication Law and the Authorization Regulation are summarized below:
A - Rights of the Service Providers: Providing electronic communications services in Turkey is subject to authorization by the ICTA. Authorization by the ICTA gives service providers the right to provide services in scope of their authorization nation wide.
B - Obligations of Service Providers:
- Financial
Obligations:
- Administrative Fee: Administrative fee in the amount of 0.35% of net sales for the previous year must be paid to the ICTA by the end of June every year. Outstanding fees may be paid until the end of September together with legal interest. Otherwise Authorizations will be cancelled.
- Right of Use Fees: Operators that have frequency or number allocations must pay right of use fees by the end of January every year. Outstanding fees may be paid until the end of March together with legal interest. Otherwise, authorizations will be cancelled.
- Universal Service Contribution Fee (USCF): USCF in the amount of 1% of net sales for the previous year must be paid to the Ministry of Transport, Maritime Affairs and Communications by the end of April every year.
- Information and Document
Requests:
- Changes in official correspondence address and registered email address must be notified to the ICTA within 1 week.
- Changes in toll free phone number, and changes related to the company shareholders and authorized representatives must be notified to the ICTA within 1 month.
- Information included in the Right of Use or Notification application forms must be notified to the ICTA every year by the end of May.
- Documents attached to the Right of Use or Notification application forms must be resubmitted to the ICTA every five years by the end of of May, starting from 2020.
- 3 months Market Data: Operators must submit quarterly operator data forms that can be found at https://www.btk.gov.tr/tr-TR/Sayfalar/Isletmeci-Veri-Formlari by the end of the 25th day of April, July, October and January every year.
- Transactions that require
the prior permission of the ICTA: Operators must
obtain the prior permission of the ICTA for the following
transactions:
- Transfer of authorizations
- Merger or acquisition of the authorized operator
- Share transfers above 10% of the company shares
- Cancellation of Authorizations: Operators that do not wish to provide services must notify the ICTA for the cancellation of their licenses. Otherwise, operators will continue to be responsible to fulfill the obligations of operators including payment of the necessary fees.
- Collection of Traffic
Data: The below traffic data must be collected and
stored:
- IP addresses of the parties,
- The start and end time of the service,
- The type of services used,
- Transferred data size,
- User number and subscriber ID information,
- Traffic information of the communications over infrastructure
- Agency/Distributor and
other business structures: Operators are obligated to
provide electronic communication services under their own name and
account and they cannot provide services in a way in which gives
the impression that a third party is the service provider.
- Agencies cannot give sub-agency,
- Operators are responsible for their agencies' operations and in the event agencies violate the law, operators will also be responsible for such violations.
- Operators must respond to the agency information requests of the ICTA.
- Infrastructure Obligations: Operators are required to install the necessary infrastructure for the enforcement of access restriction decisions that allow data transfers between the ICTA and the operators within 2 months after authorization.
- Access Providers Union Membership: Internet service providers must become a member of the Access Providers Union within 45 days after authorization.
- Access and
Interconnection:
- ICTA may bring access and interconnection obligations to operators that have significant market power. Such operators must comply with the procedures, principles and fees in reference access proposals.
- All operators are obligated to negotiate interconnection offers.
- In the event parties cannot come to an agreement, ICTA may bring interconnection obligations.
- A certified copy of access and interconnection agreements, their annexes and any amendments must be submitted to the ICTA within 15 days of signing.
- All operators must share their facilities with other operators if requested.
- Operators that have reference interconnection offers may cease services in accordance with the causes stated in the reference offers.
- Parties must comply with the rights and obligations stipulated under the reference offers to the utmost extent.
-
Audits:
- In the event of an audit, operators must assist auditors and provide them a suitable working environment.
- Provide the information and documents to the auditor within the requested time.
- Provide access to places of management, buildings, equipment, systems, software and hardware and have the authorized personnel present throughout the audit.
- Provide the necessary infrastructure for the audit and have it in working condition throughout the audit.
C - Sanctions: In the event Operators do not comply with their obligations, they may be subject to the following sanctions:
- Warning
- Administrative fines up to 3% of net sales
- Cancellation of authorization (without the right to obtain a new authorization)
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.
