Providing electronic communications services in Turkey has become even more difficult for operators.
On December 30, 2014, the Information Technologies and Communications Authority (the "ITC Authority") amended the Authorization Regulation in the Electronic Communications Sector and the Administrative Sanctions Regulation, introducing new obligations on telecommunications operators.
What the amendments say
Share Capital Requirement: Under the amendment to the Authorization Regulation, companies wishing to provide fixed phone services must have share capital of at least TRY 1 million (approx. USD 431,000). Authorizations for current operators not meeting this threshold by March 30, 2015, will be revoked.
Infrastructural Requirements: The Authorization Regulation requires authorized operators, without regard to the services provided, to upgrade their infrastructure to facilitate access blocking requests by the Presidency of Telecommunications (Telekomünikasyon İletişim Başkanlığı,"TIB") under Law No. 5651 (the "Internet Law") and other laws, including Law no. 5397, which empowers the police and the gendarmerie to lawfully intercept, tap and record electronic communications as well as assess signaling.
This requirement is not new; however, following the amendments, operators that fail to fulfill the infrastructural obligations will be prohibited from offering their services to other operators and end users. Moreover, operators will not be allowed to offer their services to other operators who have not updated their infrastructure in line with ITC Authority standards and principles.
This is in line with recent amendments to Article 6 of the Internet Law, which specified Internet service provider obligations. Recently, the phrase “to the extent it is technically possible for the Internet service provider" was removed from the text of the law, turning it into a blanket obligation for all Internet service providers, regardless of their infrastructural capabilities.
The Administrative Sanctions Regulation has also been amended to reflect the changes in operators' infrastructural obligations. As a result, authorizations for operators who do not fulfill the infrastructural requirements will be revoked. If, despite a TIB warning, an operator continues to provide electronic communications services to another operator that has not yet upgraded its infrastructure, the service providing operator is subject to an administrative fine of up to 3% of its annual turnover, and/or revocation of its authorization. The amendment introducing these administrative sanctions will become effective February 28, 2015, to give operators time to update their infrastructure.
Increased sanctions for failure to satisfy TIB requests:Under amended Article 30 of the Administrative Sanctions Regulation, any authorized operator failing to fulfill TIB requests under the Internet Law and other laws are subject to an administrative fine of up to 3% of its annual turnover, and/or revocation of its authorization. Additionally, if the operator is sanctioned for these violations, other legal entities formed by the sanctioned operator’s shareholders (holding 5% or more of its share capital), executive board members or other directors could be deemed ineligible to offer electronic communications services.
Actions to consider
Operators currently authorized to offer fixed voice services should raise their share capital to TRY 1 million by March 30, 2015, to avoid losing their authorizations.
Without regard to the services provided, all operators currently authorized to offer electronic communication services in Turkey should upgrade their infrastructure prior to February 28, 2015, to accommodate TIB requests and avoid administrative sanctions and/or losing their authorization.
These amendments reiterate the obligations under Article 12(5) of the Electronic Communication Act and extend the requirements under Article 6A of the Internet Law, which requires that every Internet access provider possess the hardware and software necessary to implement each access blocking decision of the TIB, no matter their scope of services. If authorized operators cannot accommodate TIB decisions, despite efforts to create the technical infrastructure in a timely and adequate fashion, the operators will be at serious risk of regulatory liability, such as authorization revocation and/or an administrative fine up to 3% of their annual turnover.