Electronic communications providers in Turkey subject to new obligations and procedures
On June 11, 2016, the Information Technologies and Communications Authority (the “ITC Authority”) thoroughly amended the Authorization Regulation in the Electronic Communications Sector, introducing new obligations for current and prospective electronic communications providers.
The amendments, almost all of which are effective immediately, have significantly increased the ITC Authority’s discretion, facilitating supervision over authorized operators and introducing new procedural requirements in relation to obtaining or revoking an authorization.
What the amendments say
• Authorization Applications: The ITC Authority is now empowered to reject authorization applications to protect national security and public order, health and welfare.
In evaluating an application, the ITC Authority has the power to conduct an audit to verify the accuracy of the information and documents submitted.
• Share Capital: The minimum share capital requirement has been extended to all companies; the amount, however, is yet to be set by the ITC Authority.
• Qualifying as an Operator: Prior to the amendments, an operator that did not need a “right-of-use” (Tr. kullanım hakkı) was deemed authorized on the date it notified the ITC Authority. This practice echoed that of the EU. However, following the amendments, the notifying company wishing to offer electronic communications services will only be authorized upon the ITC Authority informing the company that it has fulfilled the authorization requirements.
This is a significant shift in the authorization procedure as an operator will only be deemed authorized after the ITC Authority notifies the company that it has met the requirements. Combined with the new changes expanding the ITC Authority’s discretionary powers over the authorization process, operators face more uncertainty and potential difficulty when applying for authorizations.
• Time Period for Evaluation: As mentioned above, a company will be deemed authorized once the ITC Authority acknowledges that it meets the conditions for authorization. There is, however, no timeline within which the ITC Authority is required to inform the company, as the “15-day” period in the previous version of the Authorization Regulation has been removed. When combined with the ITC Authority’s broad discretion over authorization applications, the lack of a set period for the ITC Authority to evaluate applications presents further uncertainty for prospective electronic communications service providers.
• Reporting Obligations: The amount of information and documentation that must be annually submitted to the ITC Authority has been increased. As an example, any changes to the identities or criminal records of the operator’s representatives and shareholders must be submitted to the ITC Authority within one month. Additionally, the operator must re-submit the information on its authorization application to the ITC Authority every year, by the end of May, without regard to whether the information changed.
• Permission for Share Transfers: Under the amendments, operators must obtain the ITC Authority’s prior permission before share transfers or acquisitions involving 10% or more of a company’s shares. If the 10% threshold is not met, the ITC Authority must be notified within two months of the transaction.
Previously, share transfers did not require the ITC Authority’s prior permission but authorization holder was required to notify the ITC Authority within two months, without regard to the amount of shares subject to the transaction.
• Data Retention Obligations and Definition of User Data: Access providers or operators offering voice services are now required to retain traffic data for two years. The number of categories of data to be retained has also been increased.
In addition, the term “user data” has been defined by the amendments as the IP address, port interspace, ID information, account name set up for utilization, and the start and end times of log-in periods.
• Continuity of Services: Operators must now submit to the ITC Authority objective reasons for withdrawing from a service area, supported by substantive information and documentation. The ITC Authority may demand additional information and documentation, and/or conduct audits.
• Authorization Revocation: New regulatory requirements have been introduced for the revocation of authorization. For example, an operator requesting revocation of its authorization must supply the ITC Authority with subscriber information and records of its business activities for the previous five years.
• Electronic Communication Services Offered through Satellites: In a significant new rule, operators that provide electronic communication services over satellites and which are obligated to set up the necessary infrastructure connected with the Presidency of Communications (TR. Telekomünikasyon İletişim Başkanlığı) must carry their users’ traffic through earth stations inside Turkey. This localization requirement will enter into force on June 11, 2018.
• Suspension of Business: The ITC Authority may temporarily or permanently take over or suspend, entirely or partially, the business activities of an authorized operator for public security reasons.
Except for operators providing public use mobile wireless services, all authorized operators must submit certain information and documents to the ITC Authority by October 11, 2016, such as the criminal records of their representatives and significant shareholders owning 10% or more of the operator, and their share capital, as well as the information previously submitted as part of their authorization application.
Actions to consider
• Operators planning to engage in share transfers, acquisitions or transactions concerning 10% or more of a company’s shares must seek the ITC Authority’s prior permission.
• As the amendments have added new data categories to be retained and increased the data retention periods, authorized operators must ensure that their servers and infrastructures are capable of retaining the newly added categories of data for two years.
• During the two-year transition period, satellite communication providers must either establish or contract earth stations within Turkey to ensure compliance with localization requirements.
• Authorized operators are recommended to review the annual disclosure rules to collect and maintain the documents and information to be submitted to the ITC Authority.
The new amendments have introduced several new obligations for electronic communications providers. Most importantly, the ITC Authority now has broader discretion over the evaluation of authorization applications. In fact, the ITC Authority may exercise its discretion both in granting and revoking an authorization. Moreover, the new set of rules grants the ITC Authority the power to suspend or take control over an operator’s business activities indefinitely.
We recommend that all current and prospective electronic communication providers to review the newly introduced rules and seek advice on their legal and practical implications.