Decision no. 2021/DK-YED/80 (“Decision“) of the Information Technologies and Communication Authority (ITCA) regarding the Amending Regulation on Authorization in the Electronic Communication Sector (“Regulation“) and the Rules on Conditions and Terms of Authorization Application have been published. The Regulation entered into force after being published in the Official Gazette on 1 May 2021.
The Decision introduced amendments and innovations on various matters, including the scope of the conditions of authorization application and obligations of operators, authorization terms and competency control periods, changes of indirect control of operators, and authorization cancellation of operators that do not provide services.
In addition to the amendments in the Regulation, the ITCA published the following documents on authorization in the electronic communication sector within the scope of its Decision:
- Draft Notification Form
- Draft Application Form for Right of Usage
- Definition, Scope and Duration of Services, Networks and Infrastructures of Electronic Communication
The Decision is available here (in Turkish only).
Conditions for Authorization Application
The list of crimes has been expanded to include the following persons, who must not have been convicted of certain offenses in the company that will apply for authorization: (i) natural person shareholders that are holding at least 10% of the shares; (ii) persons authorized to manage and represent the legal entity; and (iii) natural person shareholders owning at least 10% of the shares of the shareholders that are legal entities that own at least 10% of the company shares. Usury, crimes against security of the state and the constitutional order as regulated under the Turkish Criminal Code, as well as crimes related to the provision of electronic communication services without being authorized under the Electronic Communication Law have been added to the list of prohibitions.
Moreover, any legal procedure with respect to the provision of electronic communication services without the ITCA’s authorization must not have been initiated by the applicant company or its shareholders or persons authorized to manage and represent that legal entity.
Within the scope of the amendments, the authorization of the company or companies established by shareholders holding at least 10% of company shares, or the board members or persons authorized to manage the relevant company must not have been cancelled within the last three years due to violation of the legislation. Moreover, all causes of termination/cancellation must be eliminated for the company whose authorization has been cancelled at any time due to violation of the legislation.
With the Decision, a number of amendments were introduced in the Notification Form and the Application Form for the Right of Usage, such as the increase in number of documents and types of information that must be submitted to the ITCA. Currently, authorized operators may submit these forms to the ITCA until 31 December 2023; otherwise, their authorization will be cancelled.
Finally, the authorization of operators that have not been actively operating for the last three years will be cancelled by the ITCA as of 1 May 2024. Various criteria will be taken into consideration, such as the number of subscribers and the amount of net sales for the evaluation of the “operation” requirement.
Obligations of the Operator
As a significant innovation, all operators, without being subject to any authorization classification, are obliged to inform the ITCA within one month of any share activities of up to 10% in the operator. The permission of the ITCA is necessary for any transfer of shares that causes a change in the operator’s control. Therefore, the notification of indirect share activities that will not lead to any change in operator control is not mandatory.
Pursuant to the amendment, if the authorization cancellation due to violation of legislation will make the subscribers of the operator suffer, the ITCA may postpone the implementation of the cancellation decision for up to three months.
Additionally, innovations regarding matters such as the payment of administrative fees and right of usage fees, as well as agency and other business models, were introduced.
Regulations Regarding Authorization, Renewal Periods and Competency Controls
As a substantial innovation, regulations and different parameters regarding authorization periods and renewal periods, as well as authorization competency control have been introduced by amending the Definition, Scope and Duration of Services, and Networks and Infrastructures of Electronic Communication Document concerning operators authorized within the scope of notification and unlimited right of usage.
Certain periods for competency control were introduced for operators that are authorized within the scope of the notification, as well as certain periods for authorization renewal for operators that are authorized within the scope of unlimited right of usage. Authorization of operators that fail to meet the criteria in terms of the renewal period or the control period will be canceled. These criteria are as follows:
- Ensuring the required quantity and quality limits in terms of the staff
- Ensuring the required number of subscribers or net sales performance
- Providing services actively
- Not violating relevant articles of the authorization legislation repeatedly
The first competency control period concerning the currently authorized operators within the scope of notification will take effect as of 31 December 2023.
The expiration date of the authorization periods of the operators that currently have an unlimited number of right of usage authorization is set as the expiration date of the furthest dated authorization period. Should this date fall before 31 December 2023, the expiration date will be deemed to be 31 December 2023. The starting date of the competency control of the relevant operators who are also authorized within the scope of notification shall be the same date as the expiration date of the authorization period within the scope of the right of usage.
In addition, it is stipulated that at least one staff member with a bachelor’s degree as well as staff members with duties, qualifications and amount that may be determined by the ITCA shall be certified by the ITCA or by an organization specified by the ITCA.
The legislation on authorization in the electronic communication sector, amended within the scope of the Decision, comprise substantial changes. Operators are advised to comply with the regulations within the stipulated dates since noncompliance may result in certain sanctions, including the cancellation of authorization.