Information and Communication Technologies Authority of Turkey (“ICTA” or “Authority”) has recently issued the Amending Regulation Regarding Authorization in the Electronic Communications Sector (“Regulation”), bringing out critical arrangements regarding terms of authorization and further provisions in relation to operators in the electronic communications sector.
Conditions of Application for Authorization
Accordingly, the Regulation introduces new conditions to be sought in the company when applying the Authority for authorization regarding the right of use of scarce sources. In this regard, (i) real person shareholders who own at least ten percent of the applying company’s shares and (ii) those who are authorized to manage and represent the legal entity, and (iii) the real person shareholders who own at least ten percent of the shares of the legal person shareholders who own at least ten percent of the applying company shares, shall not be charged with offences against the national security of the state and usury. In addition to that, the Regulation forbids those (i) who provide and/or establish and/or operate electronic communications services without notifying the ICTA and (ii) who provide electronic communication services without the right of use, from applying the Authority for authorization.
Furthermore, the Regulation establishes that the company intending to apply the Authority for authorization regarding the right of use, shall submit necessary information and documentation including information relating to (i) headquarter of the company, (ii) additional premises, (iii) facilities for provision of services, (iv) numbers of personnel, (v) technical, physical, and professional qualifications of employees and/or managers.
To highlight, the Regulation further stipulates in case it is determined that the operator does not provide services in the last three years based on the number of subscribers, traffic information, and net sales, the relevant authorization of the operator is canceled.
Examination of Applications for Authorization
The Regulation also brings new rules regarding the examination of applications for authorization regarding the right of use. Within this scope, it is explained that in case of missing information in the application, the Authority informs the applicant whose documents are missing, in writing or electronically. If the missing documentation is not completed within three months following the notification to the applicant by the Authority, the application is canceled.
The Regulation stipulates that the operator shall pay an administrative fee to the Authority until the last day of June of each year following the year of authorization. However, the Regulation sets forth that the amount of this annual administrative fee cannot be less than TRY 10.000,00-. Therefore, the Regulation establishes that the lower limit of administrative fee amount is determined by increasing the revaluation rate determined in accordance with the provisions of the tax procedure legislation.
On the other hand, operators are required to submit income statements approved by a tax office, authorized independent accountant, or certified public accountant, including the net sales amounts for each following year, to the Authority until the end of May of the following year. The Regulation further establishes that all authorizations of the operators who do not fulfil the payment requirement as stated above until the last day of September, together with the interest to be applied for the administrative fee to be collected as of the end of June, will be canceled.
Further Obligations of Operators
The Regulation establishes that operators must obtain permission from the ICTA before engaging any transfer, acquisition, and movement of shares up to ten percent and above. Besides, it is explained that operators shall inform the Authority within one month at the latest in case of share transfer, acquisition, and movements up to ten percent. On the other hand, if the share transfer does not cause the change of control in companies that own the shares of the operators authorized under the notification or the right of use, it is not obligatory to inform the Authority. As opposed, the Regulation explicitly stipulates that permission must be obtained from the Authority before any share transfer that causes the change of control.
To emphasize, the Regulation establishes that the name, title, address, telephone and, if available, website information of the operator’s agency/dealer must be published on the operator's official website in an up-to-date and easily accessible manner. Further, the operator is obliged to ensure that its agents/dealers comply with the standards to be determined by the Authority and to send the relevant information, including the personnel list, to the Authority in periods to be determined.
Ezgi Ceren Aydoğmuş