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Trends and developments
What is the current state of the telecoms market in your jurisdiction, including any trends and recent developments/deals?
In recent years, the Turkish IT and telecoms sectors have undergone significant developments. Historically, an important driver for development has been Turkey’s membership negotiations with the European Union. As part of these discussions, Turkey has harmonised its laws and regulatory system in line with the acquis communautaire in telecoms and media.
Turkey initiated the liberalisation of its electronic communications sector by opening some markets on January 1 2004, which partially ended the monopoly of the state-owned operator in the public electronic communications network, Türk Telekomunikasyon AS (Türk Telekom). Subsequently, numerous operators have obtained authorisation and licences to provide electronic communications services.
One of the most acute problems in the Turkish telecoms market is the delay in the deployment of a nationwide next-generation access network. There are several reasons for this, including the lack of funding and difficulties that operators face in their relationship with local operators in securing rights of way. Some operators are contemplating setting up joint ventures to overcome these challenges. In addition, the government is actively working towards identifying and remedying the issues that hinder the deployment of these networks. The government is also in the process of issuing a National Broadband Strategy and Action Plan to solve the problems of the sector.
What is the primary legislation governing the telecoms market in your jurisdiction?
Turkish telecoms regulations are based largely based on the EU regulatory framework for electronic communications. The Electronic Communications Act 2008 is the primary law governing the telecoms sector in Turkey, alongside a number of supporting secondary regulations.
Are any regulatory reforms or initiatives envisaged?
The Ministry of Transport, Maritime Affairs and Communications is expected to publish a National Broadband Strategy and Action Plan, a draft of which was published in March 2017. The Action Plan, which is eagerly awaited, includes significant considerations and measures to be adopted by the ministry regarding issues including:
- the facilitation of new generation networks;
- the revision of regulations on right of way and facility sharing;
- the efficient use of spectrums;
- measures to be taken with regard to the over-the-top services; and
- the increasing use of cloud computing.
The Action Plan is expected to be finalised in the near future. The ministry and the Information and Communication Technologies Authority (ICTA) – Turkey’s main regulatory authority – are expected to introduce certain regulations and implement various measures in relation to the matters listed above.
Universal service obligations
What universal services obligations apply?
Universal service obligations in the telecoms sector are regulated under the Universal Services Law 5369. The law provides that every end user located in Turkey has the right to receive universal services on a non-discriminatory basis, including:
- fixed telephone services;
- pay phone services;
- printed or electronic directory services;
- emergency service calls;
- internet services; and
- maritime communication services.
In this regard, the incumbent universal service providers are obliged to provide universal services at a predetermined standard and with reasonable prices. The Ministry of Transport, Maritime Affairs and Communications selects the universal service providers through a tender process, in accordance with the rules and procedures laid out in the Regulation on Principles and Procedures Regarding Collection of Universal Services Revenues and Payment of Expenses.
Which authorities regulate the telecoms sector and what is the extent of their powers?
The highest policy-making body in Turkey for electronic communications is the Ministry of Transport, Maritime Affairs and Communications. The ICTA, as the independent regulatory authority for the information and communication sectors, operates under the powers granted by various sector-specific legislations, including:
- the Electronic Communications Act;
- the Postal Services Law 6475; and
- Law 5651 on the Regulation of Publishing on the Internet and Prevention of Crimes Committed Through the Internet.
The Directorate of Telecommunication and Communication (known as TIB), which was tasked with monitoring online content under the auspices of the ICTA, was closed down on August 15 2016 and all of its duties have been transferred to the ICTA.
The ICTA is empowered to issue secondary legislation to provide clarity on the application and implementation of the Electronic Communications Act; it has been quite active in exercising its regulatory powers and has recently adopted various regulations, including the Regulation on Consumer Rights in Electronic Communication Sector. In August 2017 the ICTA also published the Draft Regulation Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communication Sector, which at the time of writing has not been promulgated.
Are there any restrictions on foreign ownership or investment in the domestic telecoms market?
While the Regulation on Authorisation for the Electronic Communication Sector provides that a company applying to the Information and Communication Technologies Authority for authorisation must be in a form compliant with Turkish law (ie, be either a joint stock or a limited liability company incorporated in Turkey), there are no foreign ownership restrictions for operators. Consequently, an applicant can be a fully owned Turkish subsidiary of a foreign company.
Licensing and authorisation
What licences/authorisations are required to provide telecoms services?
Pursuant to Article 8 of the Electronic Communications Act, the provision of electronic communication services is subject to authorisation from the Information and Communication Technologies Authority (ICTA). Authorisation can be obtained through either a notification or a right-of-use procedure.
Operators can use the notification procedure if they do not need an allocation of resources such as numbers, frequencies or satellite positions. Operators will be authorised from the time of the notification made by the ICTA stating that they fulfil authorisation requirements. Similarly, operators that need an allocation of resources are deemed to be authorised on obtaining a right of use from the ICTA.
What are the eligibility, documentary and procedural requirements to obtain a licence/authorisation?
The application in both the notification and right-of-use procedures must be made before the commencement of the services. The applicant operator must be a joint stock or limited liability company incorporated in Turkey, in accordance with the laws of Turkey.
The applicant would need to complete a notification form which is provided on the website of the ICTA and provide the required information and supporting documents as listed under the Regulation on Authorisation for the Electronic Communication Sector (Authorisation Regulation). Such documents and information include:
- contact details; and
- descriptions and lists of services to be provided and the networks operated by the company.
If a right of use is necessary (eg, for numbering or frequency purposes), the operator must file an application using the application form provided on the ICTA website. If the operator wishes to be allocated resources such as numbers, then an additional request form must also be submitted.
Among other things, the applicant must submit information about and a description of:
- the services to be provided and the networks operated by the company;
- the target consumers;
- the infrastructure to be used by the company;
- the requested numbers;
- the satellites to be used by the company; and
- whether the network would need any interconnection.
As mentioned above, the following must be annexed to the application form:
- a form of frequency assignment; and
- a form of number assignment.
Validity period and renewal
What is the validity period for licences/authorisations and what are the terms of renewal?
Operators that are authorised by way of notification are deemed authorised following the ICTA's confirmation that the requirements have been fulfilled. These operators will remain authorised as long as they are registered with the ICTA.
The validity period for right of use is determined by the ICTA on a case-by-case basis, subject to periodic review, by taking into account the request of the applicant and the nature of the relevant network and services. However, the validity period cannot exceed 25 years.
What fees apply?
Operators providing electronic communication services under an authorisation granted pursuant to the Electronic Communications Act and the Authorisation Regulation must pay an authorisation fee. This fee consists of:
- an administrative fee; and
- a fee for right of use (in case of an application for right of use) under the Authorisation Regulation.
The operators must annually pay an administrative fee equal to 0.35% of their previous year's net sales. The ICTA may change this rate, but the rate cannot exceed 0.5% of the operator's previous year’s net sales but cannot be less than TRY10,000. Pursuant to Article 11(5) of the Electronic Communications Act, the minimum amount of fees for the right of use is determined by the Council of Ministers on the ICTA's and the Ministry of Transport, Maritime Affairs and Communications’ proposal on the matter. Fees for rights of use to be applied in 2017 are available on the ICTA website.
Similarly, regardless of the type of authorisation obtained, operators are required to make a universal service payment, amounting to 1% of their previous year's net sales. However, there is no statutory cap applicable to the universal service payment rate.
In addition, Turkish law provides for an annual special communication tax for electronic communication services. The operator offering electronic communication services in question pays the special communication tax, reflecting it in the invoices issued to the users of the services.
What is the usual timeframe for obtaining a licence/authorisation?
The Authorisation Regulation provides no specific timeline within which the ICTA is required to inform the notifying or applicant company. However, there are certain timelines in which the operator must provide the necessary information to the ICTA.
The operator is deemed to be an authorised operator following the ICTA’s confirmation that the requirements have been fulfilled. The legislation is silent on the confirmation period.
Right of use
The ICTA will notify the applicant of any missing information in the application and request the completion of such information within three months following receipt of the ICTA notification by the relevant operator. On acceptance of the application, the ICTA notifies the applicant of the fee for right of use and requests the payment of the fee for the right of use within two months of receipt of the relevant notification by the company.
Network access and interconnection
What rules, requirements and procedures govern network-to-network access and interconnection?
While the Electronic Communications Act is the primary telecoms legislation, access and interconnection matters are mainly regulated by the Access and Interconnection Regulation and the Market Analysis Regulation. In other words, the Electronic Communications Act provides a general framework for access and interconnection obligations, whereas the Access and Interconnection Regulation and the Market Analysis Regulation set out detailed rules and principles.
The Information and Communication Technologies Authority (ICTA) is entitled to impose one or more access obligations on operators with significant market power in accordance with the provisions of the Electronic Communications Act, the Access and Interconnection Regulation and the Market Analysis Regulation. The Access and Interconnection Regulation restates the principle of freedom to contract and the entitlement of copper-fastening operators to negotiate free access agreements subject to the general conditions of their authorisations and any other restrictions imposed by the ICTA.
Most of the obligations that can be imposed on operators with significant market power under:
- the Electronic Communications Act;
- the Access and Interconnection Regulation; and
- the Market Analysis Regulation are similar to those provided in the EU Regulatory Framework.
Therefore, similarly to the EU Regulatory Framework, under Turkish law additional obligations can be imposed only on operators found to have significant market power following a market analysis.
Are access/interconnection prices subject to regulation?
As a general rule, operators freely determine access tariffs, including interconnection and other terms and conditions of the access agreements by taking into account the principles laid down in the Access and Interconnection Regulation. However, the ICTA may require operators with significant market power to determine the access tariffs on a cost basis. Article 5 of the Access and Interconnection Regulation states that the following principles must be observed when determining the access tariffs:
- applications that enable users to benefit from electronic communication networks, infrastructures and services at a reasonable fee should be encouraged;
- the fees to be charged for the electronic communication services should be determined based on the cost-effective provision of the services;
- supporting or meeting the cost of a service by the fees of another service must be avoided; and
- fees should not be determined in a manner that prevents, distorts or restricts competition in the market.
How are access/interconnection disputes resolved?
Pursuant to Article 18 of the Access and Interconnection Regulation, in the event of a dispute arising from, or in relation to, an access agreement between operators, any of the relevant operators may request the ICTA to start a settlement procedure. Within 30 days of the date of receipt of the relevant information and documents, the ICTA notifies the relevant operators of its decision to accept or reject the application for a settlement procedure. If the ICTA accepts the settlement request, the ICTA invites the relevant operators to a settlement meeting. The ICTA issues its decision within two months of the start date of the settlement procedure. However, this period may be extended by a maximum of two months if:
- the settlement request relates to a service not previously provided;
- the claim requires a comprehensive study and information collection process; and
- the ICTA deems it necessary in other exceptional circumstances.
Have any regulations or initiatives been introduced or proposed with respect to next-generation access?
Although there are currently no regulations proposed for next-generation access, the Action Plan published by the Ministry of Transport, Maritime Affairs and Communications includes significant considerations for next-generation access services. The Action Plan proposes certain steps to improve the next-generation access networks which includes:
- highlighting the significance of joint investments to lower the infrastructure costs; and
- proposing to update and revise the existing legislation to lift the financial burdens from the operators and encourage passive investments.
What rules and procedures govern telecoms operators’ access to land (both public and private) to install, maintain and repair infrastructure?
Operators may have access to public and private lands for the installation, maintenance or repair of infrastructures within the scope of facility-sharing arrangements or their right of way granted under the Electronic Communications Act. Broadly speaking, the Turkish regulatory framework for facility sharing and granting rights of way is parallel to the EU Framework Directive (2002/21/EC). The Regulation on the Passage of Fixed and Mobile Communications Networks and All Types of Cable and Similar Equipment Across Real Property (the Right-of-Way Regulation) sets the principles and procedures relating to rights of way.
A ‘right of way’ is defined as:
"the right of use of immovable property subject to public and/or private property to transmit all kinds of electronic communication infrastructure and their supporting equipment over and above such immovable and to install, modify, disassemble, control, maintain and repair such infrastructure."
Pursuant to Article 23 of the Electronic Communications Act, provided that the right of use on the immovable property is not permanently interrupted, requests for right of way that are technically possible without any reasonable and economically disproportionate costs must be accepted, without prejudice to reasonable and justifiable grounds that may be available.
Under the Turkish electronic communications regulatory framework, facility sharing is generally preferred to granting rights of way. Most importantly, Article 24 of the Electronic Communications Act sets forth that, if a request is made for a right of way across a property on which an electronic communications network has already been installed, and if the operators of such network are already subject to co-location or facility-sharing obligations, co-location and facility sharing options will be given priority over the option to grant a right of way.
Are infrastructure sharing agreements among operators popular and/or encouraged by the regulatory authorities? Which infrastructure sharing structures/agreements are commonly used? Do any regulations apply?
Infrastructure and facility sharing agreements are encouraged and can be imposed as an obligation on the operators with significant market power under the Market Analysis Regulation. The main procedures and principles regarding facility sharing arrangements are regulated under the Communiqué on the Principles and Procedures Regarding Co-location and Facility Sharing (the Facility Sharing Communiqué), published by the Information and Communication Technologies Authority to:
- regulate the access to existing infrastructures and efficient use of resources;
- create sustainable competition in the market;
- minimise investment and service costs; and
- set the co-location and facility sharing obligations to be imposed on operators.
Accordingly, operators that are obliged to provide facility sharing must respond to the facility sharing application within 15 days and make the relevant facility ready for sharing within a maximum of 60 days of the signing of the sharing agreement. The Facility Sharing Communiqué also sets out the criteria to be taken into account when determining the facility sharing fees.
Pricing and consumer protection
What rules govern retail pricing for telecoms services?
As a general principle, under Article 13 of the Electronic Communications Act operators are free to determine their price tariffs subject to the general principles laid out in:
- Article 14 of the act;
- the provisions of the relevant legislation; and
- the regulations of the Information and Communication Technologies Authority (ICTA).
By contrast, the ICTA is entitled to:
- establish the methods for approval, monitoring and inspection of the tariffs for operators with significant market power; and
- to set the lower and upper limits for their tariffs.
Operators with significant market power are also subject to certain obligations and requirements with regard to their tariffs under the Tariffs Regulation, which is based on the Electronic Communications Act. Accordingly, operators with significant market power must set their tariffs on a cost basis and notify the ICTA of their tariffs before they are implemented. The ICTA is entitled to grant the approval of tariffs on the basis of both costs and the lower and upper limits that it has set.
What rules govern consumer service contracts?
Consumer contracts are governed by the Regulation on Consumer Rights in Electronic Communication Sector (the Consumer Rights Regulation), adopted on the basis of the Electronic Communications Act. The Consumer Rights Regulation regulates:
- consumers’ rights regarding electronic communication services;
- the obligations of the operators; and
- the execution of:
- subscription agreements;
- special offers; and
- value-added electronic communication services.
The Consumer Rights Regulation provides that operators must provide consumers with detailed information concerning, among other things:
- the scope of the services provided;
- the terms and conditions for such services;
- the tariffs and packages; and
- the consumer complaint mechanisms.
In this respect, subscription agreements for electronic communication services can be executed through wet signature or on online platforms using secure electronic signatures; the contractual terms that are significantly disadvantageous for subscribers will be deemed to be unwritten.
Are telecoms service providers bound by any consumer disclosure requirements?
Under the Consumer Rights Regulation, operators must provide consumers with detailed information regarding the services provided, including:
- the name, trade name and address of the operator;
- a description and scope of:
- the services;
- the general terms and conditions;
- the tariffs and package information; and
- any types of tax included within such tariffs;
- the conditions relating to:
- the undertakings;
- information regarding repair; and
- maintenance services; and
- a description of consumer dispute resolution methods.
Issues and concerns
Are there any particular competition issues or concerns in the domestic telecoms market?
Despite the privatisation of Türk Telekom and the liberalisation of the telecoms market, local operators have voiced serious concern regarding the continuing significant market power of Türk Telekom. The Information and Communication Technologies Authority (ICTA) has imposed certain obligations on Türk Telekom within the scope of its powers regarding operators with significant market power. However, local market participants believe that the competitive conditions in the market are limited due to:
- Türk Telekom’s controlling rights over the majority of the infrastructure in Turkey;
- the high level of costs arising from the installation of new infrastructures; and
- administrative difficulties.
Do any sector-specific competition regulatory/legal provisions apply (eg, special conditions for dominant telecoms market players)?
Operators with significant market power are subject to certain obligations and requirements under the Electronic Communications Act and secondary regulations, including:
- the Right-of-Way Regulation;
- the Tariffs Regulation; and
- the Market Analysis Regulation.
The ICTA has imposed certain obligations, particularly on operators with significant market power, regarding among others:
- accounting separation;
- tariffs and access; and
The main principles and procedures with respect to the maintenance of effective competition in the electronic communication sector are set forth in the Market Analysis Regulation. Thus, under the regulation the ICTA is entitled to impose obligations and restrictions on operators with significant market power regarding:
- the granting of access and interconnection;
- the publication of reference access and interconnection proposals;
- account separation;
- tariff control;
- cost accounting;
- the provision of minimum line group service;
- co-location; and
- facility sharing.
Are there any requirements for structural, functional or accounting separation of operators’ activities?
Under the Electronic Communications Act and the relevant secondary regulations, operators are not subject to any structural or functional separation obligations. In addition, although the applicable legislation does not impose a general accounting separation, Article 21 of the Electronic Communication Act states that operators with significant market power may be obligated to undertake accounting separation and the ICTA has the power to impose such an obligation.
What rules and procedures govern spectrum allocation?
The Information and Communication Technologies Authority (ICTA) is the primary body responsible for frequency spectrum management in Turkey. The ICTA carries out:
- national frequency planning;
- international frequency coordination;
- frequency allocations; and
- registration procedures to ensure the efficient and effective use of, and to prevent harmful interference with, the frequency spectrum.
Resolutions from international organisations such as the International Telecommunication Union, the European Union and the European Conference of Postal and Telecoms Administrations, are considered in frequency spectrum allocation. The ICTA carries out the international frequency registrations maintained by the International Telecoms Union.
Matters relating to spectrum allocation are regulated under the Regulation on Spectrum Management and adopted by the ICTA on the basis of the Electronic Communications Act. As a general rule, those wishing to use the frequency spectrum must apply to the ICTA for frequency allocation and register it in the registry maintained by the ICTA. However, the ICTA may determine that certain wireless equipment, systems and frequency bands do not require frequency allocation and registration.
What fees apply to spectrum allocation/authorisation?
There are no allocation fees other than the right-of-use fees. Under Article 11(5) of the Electronic Communications Act, the minimum amount of fees for the right of use is determined by the Council of Ministers on the proposal of the ICTA and the Ministry of Transport, Maritime Affairs and Communications on the matter. Fees for rights of use to be applied in 2017 are available on the ITCA website.
Can spectrum licences be transferred, traded or sub-licensed?
The trading of spectrum frequencies is allowed and governed by the Authorisation Regulation. However, there is no regulation on the sub-licensing of spectrum licences.
A spectrum frequency can be transferred partially or in whole, subject to different procedures. For the transfer of spectrum frequency, an application must be filed with the ICTA. If the ICTA approves the transfer, a right-of-use authorisation will be granted to the transferee within one month of the date on which the approval is granted.
Voice over Internet Protocol
How is Voice over Internet Protocol (VoIP) regulated in your jurisdiction?
The relevant legislation does not specifically refer to VoIP technology. By contrast, ‘electronic communication’ is defined under the Electronic Communications Act as:
" the transmission, exchange and receiving of all kinds of signals, symbols, sounds, images and data which could be converted into electrical signals, by means of cable, radio, optic, electric, magnetic, electromagnetic, electrochemical, electromechanical and other types of transmission systems."
This would also include communication conducted through VoIP technology. Operators providing VoIP services would be obliged to obtain authorisation as a fixed telephony service provider from the Information and Communication Technologies Authority. It is generally accepted that peer-to-peer VoIP services that do not have a public switched telephone network breakout do not require any authorisation.
How are telephone numbers allocated in your jurisdiction?
Under Article 31 of the Electronic Communications Act, the Information and Communication Technologies Authority (ICTA) has the power and duty to allocate numbers and to prepare the National Numbering Plan and the National Frequency Plan under the policies of the Ministry Transport, Maritime Affairs and Communications. Thus, the Number Allocation Regulation sets out the provisions for granting individual rights of use for numbers and the rights and obligations of the operators to whom the rights of use for numbers are granted. For number allocation, operators must apply to the ICTA either along with the authorisation application or thereafter. Once the application is filed with the ICTA (fulfilling the requirements for number allocation as set forth in Article 10 of the Number Allocation Regulation), the ICTA finalises the allocation within 30 days of the application date and notifies the operator of the allocated numbers.
The Number Allocation Regulation provides that if the numbers are allocated through auctions, the process set out in the relevant legislation will be applied. The allocated numbers are not the operators’ property, but operators have a right to use them. These numbers cannot be transferred without the ICTA's approval.
What rules govern telephone number portability?
Telephone number portability is governed by the Regulation on Telephone Number Portability, adopted under the Electronic Communications Act. In this regard, the Regulation on Telephone Number Portability governs:
- the principles and procedures of number portability;
- the number portability requests of subscribers;
- number portability systems to be established by the operators;
- fees; and
- consumer rights.
Privacy and data security
What is your jurisdiction’s regulatory stance on net neutrality?
There is no specific legislation or current strategic plan relating to net neutrality in Turkey.
Are there regulations or restrictions on encryption of communications?
Encrypted communications are governed by the Regulation on the Procedures and Principles for Encoded or Encrypted Communication between Public Authorities and Organisations and Real and Legal Persons in Electronic Communication Services (the Encryption Regulation). The Encryption Regulation establishes the principles and procedures, along with the work and transactions to be performed, for the:
- security and safety measures;
- sanctions; and
- recording of encoded or encrypted communication systems.
In this respect, operators wishing to provide encoded or encrypted communication services must apply to the Information and Communication Technologies Authority (ICTA) for authorisation. Those who install and operate encoded or encrypted electronic communication devices or systems are obliged to take necessary measures to prevent any use and access to the systems by unauthorised persons.
Are telecoms operators bound by any rules or requirements on the retention of consumer communications data? If so, for how long must data be retained?
While there are currently no regulations in force governing data privacy in electronic communications specifically, the ICTA has recently published a draft Regulation Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communication Sector (the Regulation on Privacy in the Electronic Communication Sector).
The draft regulation covers, among other things, the data categories to be retained by the operators and the retention periods thereof.
In this respect, operators must retain the categories of data listed under Article 11 of the draft regulation as follows:
- To trace and identify the source of a communication:
- For fixed network telephony and mobile telephony, including failed calls:
- the calling telephone number;
- the name and address of the subscriber; and
- the name and address of the subscriber to whom and when the telephone number was allocated;
- For internet access, email and internet telephony:
- the user ID and telephone number allocated;
- the internet protocol address at the time of communication; and
- the name and address of the subscriber;
- For fixed network telephony and mobile telephony, including failed calls:
- To identify the destination of a communication:
- For network telephony and mobile telephony:
- the number(s) dialled;
- in cases involving supplementary services such as call forwarding or call transfer, the number or numbers to which the call is routed; and
- the name and address of the subscriber(s);
- For email and internet telephony:
- the user ID of the email recipients;
- the user ID or telephone number of the intended recipients of internet telephony call; and
- the name(s) and address(es) of the internet telephony or email recipients;
- For network telephony and mobile telephony:
- To identify the date, time and duration of a communication:
- For fixed network telephony and mobile telephony: the date and time of the start and end of the communication;
- For internet access, email and internet telephony:
- the date and time of the log-in and log-off of the internet access service;
- the IP address (whether dynamic or static) allocated, port information with the IP address in the networks used Network Address Translation and the user ID of the subscriber and user; and
- the date and time of the log-in and log-off of the internet email service or internet telephony service;
- To identify the type of communication:
- For fixed network telephony and mobile telephony: the telephone service used;
- For internet email and internet telephony: the internet service used;
- Data necessary to identify users’ communication equipment or what purports to be their equipment:
- For fixed network telephony: the calling and called telephone numbers;
- For mobile telephony:
- the calling and called telephone numbers;
- the international mobile subscriber identity of the calling and called parties;
- the international mobile equipment identity of the calling and called parties; and
- in the case of pre-paid anonymous services, the date and time of the initial activation of the service and the location label from which the service was activated;
- For internet access, internet email and internet telephony:
- the calling telephone number for dial-up access; and
- the digital subscriber line or other end point of the originator of the communication; and
- To identify the location of mobile communication equipment where necessary under the relevant legislation:
- the location label at the start of the communication;
- data identifying the geographic location of cells by reference to their location labels during the period for which communications data are retained; and
- the cell address and dates when the Cell ID was designated to and removed from such address.
Pursuant to Article 12 of the draft Regulation on Privacy in the Electronic Communication Sector, the data categories listed above must be retained by the operators for a period of two years from the date of the communication.
In addition, Article 51(10) of the Electronic Communications Act lays out the retention periods for different types of data as follows:
- Personal data subject to inspection, examination, investigation or dispute must be retained until the relevant period has expired;
- Transaction records regarding the access to personal data and to other relevant systems must be retained for two years; and
- Records showing the explicit consents of subscribers and users for the processing of their personal data must be retained for at least the term of the subscription.
What rules and procedures govern the authorities’ interception of communications and access to consumer communications data?
One of the fundamental principles of the Turkish Constitution is the privacy of communication. However, pursuant to Article 22 of the Turkish Constitution, communication may be intercepted if:
- a court has issued a decision on the basis of one or several of the following grounds:
- national security;
- public order;
- prevention of crime;
- protection of public health and public morals; or
- protection of the rights and freedoms of others; or
- an agency authorised by law has issued a written order in cases where delay is prejudicial, also on the above-mentioned grounds.
The specific conditions, principles and procedures for interception of communication, as well as the judicial and administrative authorities' powers in relation to the interception of communication are governed by various pieces of legislation, including:
- the Criminal Procedure Code 5271;
- Law 5651 on the Regulation of Publishing on the Internet and Prevention of Crimes Committed Through the Internet; and
- Law 2937 on State Intelligence Services and National Intelligence Institution.
Within the scope of the Authorisation Regulation, the ICTA may suspend, interrupt or prevent operators from providing an electronic communication service if the legal conditions of “protecting the public safety, public health, public morals and other public interests as such” are met.
Under the draft Regulation on Privacy in the Electronic Communication Sector, the ICTA is entitled to request information and documents from the operators regarding:
- the systems where personal data is stored;
- the security measures taken; and
- the changes in such security measures if deemed necessary.
Operators are required to put in place appropriate intercept functionalities. Authorised operators must comply and cooperate with valid intercept requests from enforcement authorities if and when they are received.
Moreover, according to Article 12(5) of the Electronic Communications Act, the Authorisation Regulation and the Administrative Sanctions Regulation, operators must possess or, where applicable, upgrade their infrastructure in a way that will allow them to accommodate any lawful interception or access-blocking orders.
In line with this requirement, authorised operators are not allowed to offer their services to end users or other operators who have not upgraded their infrastructure to accommodate access-blocking or lawful intercept requests arising from the applicable legislation. In addition, all authorised operators must possess the necessary infrastructure to accommodate any access-blocking or determination of communication requests issued by the ICTA.
Data security obligations
What are telecoms operators’ general data security obligations to consumers?
Article 51 of the Electronic Communications Act imposes certain data privacy obligations on operators, including the following:
- Personal data must be processed in compliance with the general principles under Law 6698 on the Protection of Personal Data – that is, in a manner that is accurate and up to date for specific, clear and legitimate purposes, and relevant, limited and proportional to the purposes for which they are processed. The personal data must be kept no longer than is stipulated by law or necessary for the purposes for which the data was collected;
- Communication may not be listened to, recorded, stored, intercepted or tracked without the consent of all the relevant parties to the communication, except in cases where the relevant legislation and judicial decisions so require;
- Operators must take appropriate technical and administrative measures to ensure the security of the networks and personal data belonging to the subscribers; and
- Traffic and location data may be transferred abroad only with the explicit consent of the data subjects.
Further, Article 13 of the draft Regulation on Privacy in the Electronic Communication Sector provides that the operators must ensure, with respect to data retained, at the minimum level that:
- the retained data shall be of the same quality and subject to the same security and protection as data on the network;
- the data shall be subject to appropriate technical and organisational measures to protect the data against:
- unauthorised or accidental access;
- processing; or
- appropriate technical and organisational measures are taken to ensure that the data can be accessed by specially authorised personnel only; and
- the data processed and retained shall be irrecoverably deleted or anonymised within one month of the end of the period of retention and such processes shall be recorded in the form of a report or electronically with a timestamp.