TMT Comparative Guide - Part 3

3.7. Can an authorisation/licence be transferred? If so, what is the process for doing so?

(a) Telecommunications

Operators that wish to transfer, acquire or move 10% or more of their shares must obtain permission from the ICTA. Operators with limited rights of use must also inform the ICTA in relation to share transfers, acquisitions and movements of up to 10% within two months of the transaction.

Mergers and takeovers are subject to the permission of the ICTA, and operators must comply with the authorisation application requirements.

If the merger or takeover will be realised by a company other than the operator, the operator must apply to the ICTA with a notification form and a right-of-use application form to obtain permission for the transaction. The transaction may also be published on the ICTA's website if the ICTA so requires.

Mergers or acquisitions must also be evaluated by the Competition Board in accordance with the Communiqué Concerning Mergers and Acquisitions Calling for the Authorisation of the Competition Authority.

(b) Internet

If the authorisation holder will be taken over by another company, that company must:

• fill out the ICTA notification form along with other information and documents requested by the ICTA; and
• apply to the ICTA for the transfer of authorisation.

If the company that will take over the authorisation is already authorised by the ICTA, there is no need for a notification form.

If the ICTA permits the transfer of authorisation, the company will be registered within one month of this permission.

4. Telecommunications

4.1. What provisions apply to the construction of telecommunications infrastructure and the installation of facilities on public and private property?

The Electronic Communications Law regulates the telecommunications sector in Turkey. The following activities are subject to the law:

• the provision of electronic communications services and the construction and operation of the infrastructure and the associated network systems thereof;
• the manufacture, import, sale, construction and operation of all kinds of electronic communications equipment and systems;
• the planning and assignment of scarce resources, including frequencies; and
• regulatory, authorisation, supervision and reconciliation activities relating to the above.

The Information and Communication Technologies Authority (ICTA) is authorised to conduct the planning and allocation of frequencies, satellite positions and numbering with regard to the installation and operation of electronic communications network and infrastructures. Also, the ICTA is authorised to coordinate the authorisation of organisations that will conduct installation, measurement, maintenance and repair activities.

4.2. Do any universal service obligations apply in your jurisdiction? If so, what are they and how are they funded?

Yes, the Law on Universal Services (5369) regulates the obligations and rules on this matter. The purpose of this law is to govern the provision, implementation and fulfilment in the electronic communication sector of universal services, which have the qualities of a public service but are financially challenging for operators to provide.

Operators must provide the universal services specified, such as:

• fixed telephony services;
• payphone services;
• telephone directory services to be provided in printed or electronic media;
• emergency call services;
• basic internet services; and
• passenger transportation services.

Concession and authorisation agreements or licences and general authorisations may not include provisions that are contrary to the principles set out in Article 3, including the following:

• Anybody living in the territory of Turkey, without discrimination on the basis of region or place of residence, should be able to avail of universal services.
• Universal services may also be fulfilled with consideration to gross domestic product per capita and must be offered at reasonable prices.
• Measures on the pricing and feasibility of technology options must be taken with a view to ensuring that those with lower incomes, the disabled and groups in need of social assistance can also benefit from universal services.
• Universal services must be offered to predefined service quality standards.
• Continuity is essential to the provision of, and access to, universal services.

According to Article 6 of the Law on Universal Services, the Treasury must notify the Ministry of Transport and Infrastructure of 2% of the authorisation fee deposited in its accounts due to the authorisation provided by the ICTA by the end of the month following the date of deposit. Also, operators must make yearly payments of a universal service fee in the amount of 1% of their annual net sales. Mobile operators must notify the Ministry of Transport and Infrastructure 10% of the share they must pay the Treasury within the month of payment. By the end of January each year, the ICTA must further notify the Ministry of Transport and Infrastructure of:

• 20% of the administrative penalties which it applied during the fiscal year; and
• 20% of the amount remaining after all expenditure has been met at the end of the fiscal year.

4.3. How is interconnection regulated in your jurisdiction? What rules and requirements apply in this regard? Are interconnection and network access charges subject to price regulation?

Interconnection is governed by the Regulation on Access and Interconnection Public. Provisions on interconnection and access are also included in:

• the Communiqué on the Procedures and Principles Regarding Common Settlement and Facility Sharing; and
• the Communiqué on the Procedures and Principles on Unbundled Access to the Local Network.

According to the Regulation on Access and Interconnection Public, the ICTA is the authority that may determine requirements for interconnection. For instance, the ICTA may require operators with significant market power to:

• prepare reference access offers; and
• make available information such as:
• • technical specifications;
  • network specifications;
  • terms and conditions regarding supply and usage; and
  • fees.

If the ICTA requires the preparation of reference access offers including interconnection, the operator must prepare and submit its reference offer to the ICTA within three months of the date on which the obligation was imposed. Operators must publish their reference access offers that are approved by the ICTA on their websites and through other methods defined by the ICTA.

Each year, the ICTA determines the interconnection fee tariffs and publishes them on its official website. Examples include:

• mobile call termination fees of mobile network operators;
• interconnection fees on the fixed network; and
• SMS call termination fees of mobile network operators.

4.4. What rules and requirements govern the allocation and use of telephone numbers in your jurisdiction?

The ICTA is authorised to allocate numbers and to prepare the National Numbering Plan and the National Frequency Plan under the policies of the Ministry of Transport and Infrastructure and under the Electronic Communications Law. Number allocation and usage principles are specifically regulated under the Numbering Regulation.

According to Article 10 of the Numbering Regulation, the following conditions are sought for number allocation:

• The number allocation request must be specified in the application in accordance with the National Numbering Plan.
• The requested numbers must be assignable.
• The numbers requested must be compatible with the definition and geographical scope of the service.
• The applicant's technical capacity must be adequate for the amount of numbers requested, and its market forecasts and investment plan must support the number of subscribers.
• The applicant must be authorised in accordance with the number source that it has requested or have an authorisation application in accordance with the relevant legislation.
• In case of the assignment of additional numbers of the same type or under the same area code for numbers allocated as blocks, or where the allocation of a new number block that can be allocated to different operators is requested:
• • the scope of the service must be evaluated; and
  • an occupancy rate of 65% should be reached in the numbers allocated beforehand.
• Other conditions deemed necessary by the ICTA must be satisfied.

The use of allocated numbers is also regulated under the Numbering Regulation. Further, secondary and subsequent allocations must be made in accordance with the purpose of the primary allocation.

The allocated numbers:

• cannot be used in a way that will distort competition or violate consumer rights;
• must be used in accordance with the tariff regulations related to the number types; and
• must be put into service within one year at the latest from the date of allocation. This period may be extended if deemed necessary by the ICTA. The operator must make an extension request at least one month before the expiry of the one-year period.

Numbers from the National Numbering Plan cannot be used, except for the numbers assigned by the ICTA. In addition to these conditions, the ICTA may impose special conditions for the type of service or number.

4.5. What rules and requirements govern number portability in your jurisdiction?

According to the Number Portability Regulation, subscribers can change their operator, geographical position and service type without having to change their number. Operators are obliged to provide number portability.

The operator will reject a number porting request if:

• the number requested to be ported belongs to another subscriber;
• the identity information of the subscriber is wrong or incomplete;
• the subscriber has already requested that his or her current operator change the number or porting is ongoing for the number previously requested; or
• the subscriber has already requested the cancellation or transfer of the subscription agreement with his or her current operator.

Also, in relation to mobile number portability, three months must have passed from the date of the subscriber's first subscription contract with the current operator.

Aside the grounds for refusal mentioned above, the ICTA may issue additional grounds for refusal regarding geographical number portability and/or non-geographic number portability, if deemed necessary.

Regarding number portal requests, the recipient operator must notify and inform by sending a message (SMS) to the number requested that the request is in process.

The Number Portability Regulation imposes several obligations on operators, such as the following:

• Operators must provide number portability;
• Regardless of whether operators have a number portability obligation or not, calls that are initiated or carried towards a ported number must be routed correctly to the receiving operator;
• Operators must take any measures determined by the ICTA regarding tariff transparency; and
• Upon the ICTA's request, an operator must send the necessary information regarding the numbers transferred from its network to another network or from another network to its own network.

4.6. Are retail customer charges subject to price regulation in your jurisdiction?

The ICTA is authorised to impose various types of price controls under the Regulation on Tariffs. The operators must consider these tariffs while offering their services.

4.7. Are retail customer terms and conditions subject to regulation in your jurisdiction?

Yes, the Regulation on Consumer Rights in Electronic Communications Sector regulates the customer terms and conditions between subscribers and operators.

5. Spectrum use

5.1. How is spectrum use authorised in your jurisdiction? Do any exemptions apply?

The Information and Communication Technologies Authority (ICTA) is responsible for spectrum management. The Radio and Television Supreme Council (RTSC) may regulate television channels and radio frequencies for terrestrial radio and television broadcasting within the frequency bands allocated by the ICTA. Also, the Turkish Armed Forces may regulate frequencies for military purposes within the frequency bands allocated by the ICTA.

The ICTA may determine exemptions for spectrum allocation and registration of certain wireless equipment and system. Such use of spectrum is possible for wireless equipment and systems without any licence, authorisation or permission. However, such frequency allocation is possible for a maximum period of five years.

The use of spectrum cannot be made licence exempt under the Turkish Broadcasting Law. Media service providers must obtain separate licences from the RTSC to broadcast through cable, satellite, terrestrial and similar means pursuant to the Turkish Broadcasting Law.

5.2. What is the procedure for allocating spectrum in your jurisdiction?

Articles 36 to 46 of the Electronic Communications Law regulate spectrum management. However, the procedures regarding spectrum management are regulated under the Regulation on Spectrum Management.

Operators must first apply to the ICTA for the spectrum allocation under the Regulation on Spectrum Management. After the ICTA approves the application, the operator obtains the spectrum licence. Thereafter, the operator must register its allocated spectrum with the registry established by the ICTA. If a natural or legal person which is not an operator wishes to install a device requiring a spectrum allocation by the ICTA, such person must also apply to the ICTA for the allocation of spectrum.

The ICTA prepares a National Frequency Plan that includes:

• a general and detailed frequency plan;
• frequency intervals for planned systems;
• the authorisation procedure;
• reference information;
• output power; and
• brief notes.

5.3. How long does it typically take? What costs are involved?

Frequency allocations to non-authorised radio system users are made for a maximum period of five years. If necessary, permission is granted to install and use the radio system on a common use basis. The allocated frequencies can be used for as long as the system installation and usage authorisation term permit. The requests of users of the radio system that document their need for the system at the end of the period will be evaluated and the frequency usage period of those deemed appropriate will be extended.

The ICTA publishes updated radio authorisation and usage fees for each year, according to the Electronic Communications Law. These fees are calculated based on the formula specified in the Annex of the Electronic Communications Law. Also, the RTSC determines television and radio frequency usage fees for each year. The fees to be applied in 2023 are available on the ICTA and RTSC websites.

5.4. What are the penalties for unauthorised spectrum use or breach of authorisation?

Article 63 of the Electronic Communications Law regulates penal provisions.

Anyone that sells, installs, operates and uses these devices without permission from the ICTA will be punished with a judicial fine of up to 2,000 days. Anyone that uses these devices for the purpose of violating national security, even if the necessary permits have been obtained, will be sentenced to imprisonment for between six months and one year and a judicial fine of up to 10,000 days, unless their actions constitute a crime requiring a heavier penalty.

Moreover, judicial fines of not less than 100 days may be imposed where authorised persons do not take measures within due time determined by the ICTA to remedy a breach or to remedy electromagnetic interference or jamming factors when detected on other electronic communications systems in whatsoever manner.

Perpetrators that communicate by means of coded or cryptographic communication, or that enable such communication in defiance of the Electronic Communications Law, will be punished by a judicial fine of between 500 days and 1,000 days.

5.5. Can a spectrum authorisation be transferred? If so, what is the process for doing so?

The Regulation on Authorisation in the Electronic Communication Sector allows the trading of spectrum licences. Operators can transfer spectrum frequency partially or fully after applying to the ICTA for the transfer of a spectrum licence. The ICTA will evaluate transfer applications by considering requirements including market and competition conditions and other related matters.

Also, spectrum authorisations can be transferred within the context of mergers and acquisitions. In this case, the parties must apply to the ICTA as well. The ICTA will evaluate the application by considering:

• market and competition conditions in the operator's area;
• its market share; and
• other related issues.

The approval of the ICTA regarding such application will be notified to the relevant parties within one month. A right-of-use authorisation will be granted to the new company within one month of the date on which such notification is made.