Turkish people are among the most enthusiastic internet, social media and mobile device users in the world.
According to a recent survey published in January 2015, 37.7 million people, which is 49 per cent of the Turkish population, regularly use the internet.2 Moreover, there are 40 million social media accounts in Turkey. Turkey is investing in broadband, fibre-optic cables and 4.5G and 5G GSM infrastructures to make connectivity more efficient. Internet gaming, mobile payment systems, digital banking and financial services, e-government applications, and other digital products and services are also being developed and used more widely every day.
This trend has led to remarkable development in technology-based innovation,
the establishment of serious incubators and accelerators who can cooperate with entrepreneurs, and considerable private investment in finance, health and telecommunication-related technology. Regarding small companies with approximately 10 employees, 93 per cent have internet connection, and 12.5 per cent of entrepreneurs are now selling their goods and services online.3
Mobile penetration level in Turkey is also very high, and it is anticipated that 10 per cent of smartphones will be used at least once a month to make payments at a retail shop during the course of 2015.
Despite intense use of mobile devices and internet thereon, Turkey remained the most relentless collector of tax on mobile devices and the use of internet on mobile devices. Turkey imposes a total of 41.2 per cent tax on telecommunications, comprising Information and Communication Technologies Authority (BTK) licences, VAT, a US$23.3 tax on activation of SIM cards, 25 per cent tax airtime excise, 23.2 per cent special telecoms tax and 20.1 per cent consumer tax, making Turkey the global taxation leader.4
Use of cloud in the public and private sectors is becoming more prevalent each day. Efforts to address privacy concerns and to provide a more efficient internet infrastructure are ongoing.
The development of new policies in the telecommunications industry continues in the areas of technological developments, the liberal economy and competition conditions. The Law on Regulation of E-Commerce and two of its by-laws provide important definitions for the industry and its players. Positive steps are being taken to protect privacy and data in line with the EU regulations; Turkish law and regulations on payment and securities settlement systems, payment services and electronic money institutions have been enacted, and the Banking Regulation and Supervision Agency (BDDK) has been authorised as the system watchdog and the issuer of licences to operate mobile payment systems and issue e-money.
BTK has maintained its vital position with respect to the development of relevant public policies, resolving issues in the science and technology industries, and determining the terms and conditions of public tenders. Actions boosting competition, such as the privatisation of Türk Telekom, allowing mobile number portability among GSM operators and developing the infrastructure for ISPs has enabled new developments and improved service quality. BTK has also been authorised to apply the sanctions stipulated in the e-commerce legislation.
Pursuant to BTK’s annual activity report for 2014, 1,124 companies obtained licences to provide telecommunication services, and the number of mobile phone users reached 71.9 million. Türk Telekom is authorised to complete the necessary infrastructural preparations for 4.5G, and the public tenders in this respect have been finalised.
Under the most recent legislative amendments, the powers of the Presidency of Telecommunication (TİB) have been increased, allowing it to decide whether content on the internet is legal. This, and some other similar amendments, have caused controversy, and have been challenged before the Constitutional Court.
Rapid growth, and the sizeable and savvy use of the internet and social media, have created new jobs, and boosted the economy, digital marketing and big data. It has also heavily influenced the political scene. Turkey has be subject to three nationwide elections since March 2014, and a early general parliamentary election took place on 1 October 2015. Despite more demands for freedom and tolerance, as manifested by the Gezi Park protests,5 Turkey has been under the rule of a single party for 14 years that has less tolerance for freedom of expression and freedom of press, leading to social media bans and very restrictive provisions in the pieces of legislation relevant to the industry.
The use of internet and mobile devices, connection quality and infrastructure, e-commerce and other digital products, services and environment will continue to grow at a rapid rate in Turkey. As such, Turkey is in urgent need of legislation that will allow it to nurture the electronic economy and development of human resources, and to become a real information society. Moreover, we believe that whether Turkey’s course is still compatible with its path to become a full EU member should be reviewed, and that new legislative acts should be engineered to ensure harmonisation with the acquis communautaire of the EU.
i The regulators
The Ministry of Transportation and Telecommunication (Ministry) is the main telecommunications sector regulatory authority in Turkey. The Ministry:
- a manages scarce resources;
- b determines the main policies and strategies with respect to communication services;
- c ensures and sustains the free competition;
- d represents Turkey before the international unions and bodies related to the communications industry;
- e establishes alternative communications infrastructure in the event that services are disrupted due to force majeure; and
- f maintains coordination among the industry actors.
The internet has been available in Turkey since 1993. Internet services were provided by the state until 27 January 2000, when the state’s monopoly was ended by Law No. 4502. The operation and provision of telecommunications services used to be governed by an autonomous public authority, Telecommunications Institution. In 2008, this authority evolved into BTK, which has wider powers and responsibilities vested on it by Electronic Communications Law No. 5809.
BTK is a separate legal entity with fiscal and administrative autonomy that:
- a regulates the industry and operators to protect competition;
- b imposes sanctions in cases of violation;
- c regulates the processing and protection of the end-users’ data;
- d ensures the establishment of network and infrastructure for the provision of electronic communications; and
- e assigns frequency, satellite positions and number coding.
With extended powers and strengthened decision-making mechanisms, TİB, which works under BTK, is the most important public authority for internet services. TİB’s responsibilities as designated by the laws include:
- a detects electronic correspondence;
- b conducts electronic eavesdropping and visualisation;
- c evaluates and stores signal data;
- d ensures the establishment of technical infrastructure by public entities and private entities, imposing sanctions on those who fail to establish such technical infrastructure or comply with other legal requirements;
- e cooperates with various law enforcement agencies to prevent crimes committed on the internet; and
- f removes or restricts access to illegal content on the internet.
Another important internet services-related actor is the Access Providers Association (APA), established pursuant to amendments introduced in 2014 in Law No. 5651 concerning the fight against crimes committed on the internet. The amendments introduced in Law No. 5651 during the past two years have been subject to severe criticism due to their undemocratic nature, and have been challenged before the Constitutional Court. One of the provisions of such amendments was to establish the APA to carry out orders issued by TİB, the ministries and the Prime Minister to restrict access to content on the internet at the latest within four hours. The articles of association of the APA has been challenged before the Council of State (the highest administrative court in Turkey), and the 13th Chamber of the Council of State issued a suspension of implementation decision on 20 January 2015 on the implementation of the APA. Today, many believe that the actions that the APA takes, despite the suspension of the implementation decision of the Council of State, are void.
BDDK is the main regulatory authority on payment and securities settlement systems, payment services and electronic money. BDDK issues the relevant licences, supervises the compliance of companies and regulates these services and activities. Since the relevant legislation imposes responsibilities and stipulates provisions about online market places that receive payments, BDDK is also a major e-commerce and telecommunications regulatory body.
In the media industry, the state-owned TV and radio broadcaster Turkish Radio and Television Corporation (TRT) and the Radio and Television Supreme Council (RTÜK) are the two main regulators.
Some of TRT’s main responsibilities, as stipulated in Law No. 2954, are:
- a broadcasting radio and TV programmes;
- b establishing, developing and improving broadcasting stations;
- c establishing programme transmission systems and studios;
- d engaging in revenue-generating activities;
- e gathering and obtaining news and information; and
- f establishing units for programme production and broadcast.
TRT may also enter into agreements and protocols with international radio and TV broadcasting bodies upon obtaining the approval of the Prime Minister.
RTÜK supervises the radio and TV programmes broadcast by national and regional broadcasters, and ensures their compliance with the applicable laws pursuant to Law No. 6112. RTÜK is a separate legal entity with fiscal and administrative autonomy. Other main responsibilities of RTÜK are:
- a ensuring freedom of expression and freedom of obtaining information;
- b sustaining diversity of ideas;
- c protecting competition and pluralism;
- d preventing economic concentrations;
- e taking the measures necessary to protect the public interest;
- f establishing an environment suitable for the provision of frequency infrastructure services as required by the Electronic Communications Law; and
- g regulating the broadcasting industry by issuing secondary legislation.
Finally, the Competition Authority (CA) is the top regulatory body charged with protecting free market competition conditions, and with supervising implementations regarding the market, tariff-share transfers, and mergers and acquisitions in order to take antitrust measures.
ii Regulated activities
As a rule, the provision of services in the electronic communications industry is not subject to approval, but is subject to licence and notification. Accordingly, operators who are willing to provide electronic communication services, establish a network or infrastructure must gain the authorisation from the relevant public authority. In order to be authorised, operators must apply to BTK in accordance with the relevant legislation for establishing a network or infrastructure.
Operators who apply for access provision services or hosting provision services also have to notify TİB with documents required by TİB. Failure to do so is subject to fines.
RTÜK determines the number and network coverage of terrestrial broadcasting services, and the TV and radio channel frequency bands. The numbers and types of the national, regional and terrestrial broadcasting networks and multiplex numbers are determined by RTÜK, and frequencies and multiplex capacities are allocated to media service providers accordingly.
Private media service providers have to obtain separate licences from RTÜK for broadcasting on cable, satellite and terrestrial platforms. The licences specifically indicate the type of the platform for each broadcast. The term of a licence is 10 years, and RTÜK announces any broadcasting capacity that becomes available in the event of a failure to renew the licence.
GSM-based communication began in 1998 through two private operators’ entry into the market upon executing a 25-year GSM operation licence with the Ministry. GSM services, landline phone services, long-distance telephone services, ADSL services, virtual mobile network services and other telecommunication services are also subject to licensing.
In order to issue electronic money or provide services as a payment agent, companies must apply to BDDK with the documents and data specified in the relevant legislation. BDDK issues such licences if the structure of the board of the company, the good financial standing of the company, the organisation, risk management and other operations and units of the company fulfil certain requirements specified in the relevant legislation. BDDK and the legislation emphasise administrative and financial risk management, since the industry is still very young and there is a lack of systems and security measure in place. Payment system companies and e-money should also undergo an independent audit, and must keep their books and records for a period of 10 years.
iii Ownership and market access restrictions
Companies that are licensed to provide telecommunication services are only entitled to provide the services indicated in their licences. To the extent necessary to provide such services, telecommunication service companies may also sell, install, maintain and repair devices and provide consultancy that are integral to the telecommunication services they provide. Telecommunications service companies are prohibited from engaging in any activities other than those that are specified in their licences and those services that constitute an integral part of such services.
Shareholders holding at least 5 per cent of the capital of the company, and those entitled to represent and bind decisions of telecommunication service companies, should never:
- a have been convicted of any crime committed against the state;
- b have committed any terrorism crime;
- c have violated any BDDK or Capital Markets Board legislation; or
- d have committed any financial crime (bribery, embezzlement, fraud, trafficking, theft, money laundering, tax fraud, etc.)
In the media industry, a broadcasting licence may only be allocated to a joint-stock company incorporated to broadcast radio and TV programmes. Amendments to the articles of association of a media company shall be notified to RTÜK within one month. Political parties, unions, trade organisations, associations, charitable foundations, municipalities and their commercial enterprises cannot directly or indirectly be shareholders in a media company. Broadcasting licences cannot be transferred.
Media companies may go public after obtaining the approval of RTÜK. A single legal entity or real person may not directly or indirectly be a shareholder in more than four media companies with terrestrial broadcasting licences. The total market share of the multiple entities in which a single entity or person holds ownership may not exceed 30 per cent of the revenues generated in such market. Foreign ownership in a media company may not exceed 50 per cent of the paid-in capital of such media company. A foreign entity or a foreign person may directly be a shareholder to a maximum two media companies. In the case of indirect ownership, the chair, the deputy-chair, the majority of the board, and the general manager and shareholders representing the majority of the votes at the general assembly of the media company, shall be nationals of Turkey. Such provisions shall also be stipulated in the articles of association of the media company.
Share transfers concerning 10 per cent or more of the capital of a payment agent company or e-money issuer company are subject to BDDK consent. Moreover, exceeding direct or indirect ownership thresholds of 10, 20, 33 or 50 per cent of a shareholding in a payment agent company and e-money issuer company are subject to BDDK consent. The establishment of usufruct rights, including voting rights in aforementioned ratios, is considered to be a share transfer. The issuing of shares with privileges to appoint members to a board of directors or a board of auditors, and the transfer or issuance of such privileged shares, are also subject to BDDK consent. There is no specific foreign ownership restriction.
iv Transfers of control and assignments
Since state ownership has been removed and the telecommunications industry has been liberalised, transfers of shares, control or assignment as well as mergers and acquisitions have been carefully scrutinised, mainly by BTK and the CA, to establish and sustain a healthy market economy.
In its electronic communications-related investigations, examinations and decisions on mergers and acquisitions, the CA obtains opinions from BTK, and takes into consideration BTK’s regulatory and administrative actions. BTK may conduct market surveys and analysis to determine service providers with significant market power, and may impose liabilities on them to establish and maintain an effective competitive environment. BTK may distinguish the liabilities among those operators with significant market power in the same or different markets.
Radio and TV broadcasting services providers have to notify all the details with respect to any share transfer within 30 days from the date of transfer. Merger and acquisition transactions regarding a media company is subject to the consent of RTÜK.
IIi TELECOMMUNICATIONS and INTERNET ACCESS
i Internet and internet protocol regulation
As elsewhere in the world, Turkish legislation regarding internet and electronic communication has been developed and revised as necessary when compelled by technological developments and the widespread use of such technologies. Although these legislative developments are currently far behind such technological developments, there are continuing efforts to update the relevant regulations.
The essential provisions with respect to internet, telecommunication and electronic communication services have been stipulated in Electronic Communications Law No. 5289 dated 5 November 2008. In this legislation, ‘electronic communication’ has been defined as the transmission and receipt of all signals, symbols, sounds, images and data that can be transformed into electric signals via cable, wireless, optical, electric, magnetic, electro-magnetic, electro-chemical, electro-mechanic and other transmission systems. Although there is no distinction drawn between IP-based internet services and GSM operators, in practice, sufficient opportunities are available for those operators who want to provide such services. In addition to this legislative activity, in 2008 and 2009, fixed land telephone lines have been liberalised, fixed line portability has been made possible and 3G licences have been issued.
The main piece of legislation dealing with the internet is Law No. 5651 concerning Regulation of Publications on the Internet and Suppression of Crimes Committed in such Publications, which was enacted in 2004 in an effort to harmonise the Turkish legislation with the acquis communautaire of the EU, and to address the urgent need to deal with developments in technology and the internet. Law No. 5651 has been amended three times since the beginning of 2014, mainly due to political reasons, as further discussed below.
ii Universal service
Internet use has been steadily increasing in Turkey, and BTK claims the credit for this by virtue of its incentive policies.
The Ministry, BTK and other relevant regulatory authorities have been working on periodic goals and studies to transform Turkey into an information society, a centre of technology-based innovation and a telecommunications powerhouse. In addition to completing the 4.5G infrastructure and finalising the tenders so far in this regard, BTK has also committed itself to establishing the infrastructure for 5G mobile systems in collaborating with operators in 2023, to coincide with the 100th anniversary of the founding of the Republic of Turkey. BTK is also committed to establishing the network infrastructure with national capital, and manufacturing a national smartphone and national crypto and cloud systems.
Pursuant to BTK’s annual activity report for 2014, there are 41.3 million internet service subscribers in Turkey. The net sales revenues of the authorised operators have reached approximately US$12 million. Investments in the telecommunication industry have increased by 4 per cent, reaching US$2 billion. The number of mobile broadband users has reached 32.5 million.
iii Restrictions on the provision of service
The main reasons to liberate the telecommunications industry are to ensure the provision of more affordable and quality services; the protection of consumer rights, personal rights, data and privacy; and to be able to monitor the industry. This approach is reflected in the Electronic Communications Law: one of the goals of the Law is stipulated as the provision of unlimited communications services at reasonable prices.
Pursuant to the relevant legislation, operators are free to determine their communication service fees, including inter-connection access and line and circuit lease fees. The legislation indicates what the tariff price may include and the main terms of the tariff. BTK is entitled to intervene regarding the tariff prices of those operators with significant market power.
Internet access services shall be available to all of the public under equal conditions. Those in need of different terms and conditions of access may be granted more convenient terms and conditions provided that the reason, the scope and limits of such terms and conditions are clearly determined.
Accordingly, operators must provide equal communication services to consumers and end-users without any distinction. Moreover, to ensure transparency, operators must announce service options, quality, tariffs and other relevant information that may influence a consumer’s decision when obtaining services from a particular service provider. Consumers are also entitled to choose services based on their own discretion, and may change their operators. User content shared on the internet is governed by Law No. 5651.
Law No. 5651 defines ‘access provider’ as any real person or entity that provides or operates the systems where the user may access, develop, modify and provide any data or content on the internet. The content provider, who is the user developing, sharing and providing the data or content, is liable for the content. However, an access provider who does not restrict access to the relevant content upon notification to restrict such access, or an access provider that, judging by the way it presents such content, has a clear intent to explicitly support or embrace the illegal content, would also be liable for the illegal content. This provision is being challenged before the Constitutional Court with the claim that it is ambiguous, disproportionate and violates the basic personality principles in Turkey’s criminal law.
It should be noted that the European Court of Human Rights (ECtHR) ruled in December 2012 that Article 8 of the Internet Law violates Article 10 of the European Convention on Human Rights, and that it does not possess the qualities to qualify as ‘law’. The ECtHR condemned the state to pay compensation.
A series of amendments have been introduced into Law No. 5651 since early 2014, and the following provisions have been introduced despite criticism from academia and industry leaders.
BTK may order access restriction to websites with obscene content or content involving the sexual abuse of minors. At the investigation phase, and upon reasonable doubt, the court (or, where urgent, public prosecutors) may order access be restricted to:
- a websites that provide materials and drugs detrimental to health;
- b websites that provide prostitution services;
- c gambling websites; and
- d websites that violate the Law on Crimes Committed Against Atatürk.
A prosecutor who issues an access restriction order must apply to a criminal court of peace to get approval for such decision.
The chair of TİB may, ex officio, order the APA to ban access to content that is believed to violate privacy, and may make such determination and issue such an order based on his or her sole discretion. The chair of TİB will send the banning order to the court within 24 hours after he or she sends it to the APA. The APA will still have to execute the ban immediately, and not later than within four hours of receiving the banning order.
Anyone claiming that his or her privacy has been violated may directly apply to TİB for removal of the content, thereby bypassing the content provider, hosting provider and the courts. TİB must forward the removal request directly to the APA, and the APA must execute the order immediately, and not later than four hours after receiving the removal request. The person who requests content removal shall apply to the court to have his or her removal request approved within 24 hours after filing the removal request.
Anyone claiming to have suffered due to any offence other than privacy violation may apply directly to the court. The court must decide on the complaint within 24 hours without hearing arguments from the content or hosting provider. Only once the content is removed can the content or hosting provider, or both, object to an upper court.
Hosting providers must store users’ traffic data (IP addresses, the initiation and ending dates of the service, the type of service offered, the amount of transmitted data, the ID data of the subscriber) for up to two years, and must provide it to TİB when deemed relevant to cybersecurity.
The court is entitled to block access to an entire website or web-based service (e.g., YouTube, Facebook, Twitter, Vimeo) if the court thinks that removing a specific URL will not serve the intended purpose (in other words, Facebook, Twitter or YouTube may be blocked due to specific videos that are being uploaded over and over again by different users).
Moreover, the Prime Minister or relevant minister may demand that TİB remove content or restrict access to content that they believe threatens national security, public order or public health, or to prevent crime. TİB must implement the decision within four hours. TİB must seek the approval of a judge of a criminal court of peace within 24 hours. In practice, it is the APA that has to implement restriction orders within four hours. If it is technically impossible for the access provider to remove the specific content or restrict access to the specific content, the entire web-based service (such as YouTube or Twitter) will be banned. Those who retweet, repost or otherwise share the content will be prosecuted for the same crime as the content provider.
Most of the amendments introduced in the Internet Law are criticised as being contrary to the Turkish Constitution; in addition, a 2012 ruling of the European Court of Human Rights condemns the Internet Law as inadequate to even be considered law.
In October 2014, the Constitutional Court of Turkey annulled two provisions in the omnibus bill enacted on 11 September 2014 regarding:
- a TİB banning a website at its own discretion, and without a court order, due to its perception of a threat to national security or public order, or for the prevention of a crime; and
- b the collection of individuals’ internet traffic data by TİB.
Legal academia, internet users, the free media and industry leaders perceive a very serious threat arising from the government’s legislative actions and prosecution efforts on:
- a the right to access, which is considered as a fundamental human right by the UN and EU; and
- b classical fundamental rights, such as freedom of expression, freedom of press, right to communicate, right to collect information, and right of organisation and association on the internet.
The right to communicate and other relevant fundamental rights are guaranteed under Article 19 of the Turkish Constitution and the relevant provisions of the Criminal Code. The right to communicate may be restricted, without prejudice to the essence of the right, only due to a prevailing need to protect national security or public order; prevent crime; protect public morals and health; and protect rights and freedoms of persons. The restriction may only be introduced by a decision of the competent court or, where urgent, by an order of a competent authority. However, such competent authority has to seek the approval of the competent court within 24 hours, and the court has to issue a decision within 48 hours. Otherwise, the restriction decision automatically becomes invalid.
Under an amendment introduced in the Constitution in 2010, protection of personal data is guaranteed by the Constitution.
Every person has the right to demand protection of his or her personal data. This right of protection entails being informed of his or her personal data, having access to such data, being able to demand corrections or the deletion of the personal data, and being informed of whether the data are used in line with the purposes of its collection.
Personal data may be processed only in those circumstances prescribed by law upon the explicit consent of their owner.
In addition, every person has the right to demand privacy and respect regarding his or her private life and family life, and the privacy of private life and family life is inviolable.
Although some provisions with respect to protection of personal data have been introduced in the new pieces of legislation concerning e-commerce and electronic communication, no specific law with respect to data protection has yet been enacted. The bill on data protection is still waiting to be reviewed before the Parliament.
Protection and processing of personal data in the telecommunications industry is governed by the Regulation on Processing Personal Data and Protection of Privacy in Telecommunications Industry, published in the Official Gazette dated 6 February 2004.
Operators must submit all the technical and structural measures they have in place to protect the security of the network, the processing of personal data and privacy for approval to BTK. If there is an extraordinary risk with respect to violation of the network and the services provided by the operator, the operator has to immediately warn its subscribers about the risks and how the risks can be avoided. In addition to those requirements under the law and court orders, telecommunications cannot be eavesdropped on, recorded, stored, processed or made subject to surveillance without the consent of each party to the relevant communication. If the user allows the use of his or her personal data for marketing of telecommunication services or for the provision of value-added services, the operator may process the personal data to the extent and for the time necessary for such services and marketing. Users and subscribers may always revoke the permission they have granted. The operator must inform users or subscribers about the use of their processed personal data, and the amount of time necessary for processing such for the provision of the telecommunication or marketing services carried out upon the consent of such user or subscriber.
In addition to the foregoing, a bill on protection on personal data was proposed on 26 December 2014. The bill is based on the principles stipulated in the EU directives. Unfortunately, the bill has not been reviewed, discussed or enacted by the Parliament.
Protection and processing of personal data are also regulated in the Constitution, the Civil Code, the Criminal Code, and the Law on Regulation of E-Commerce and its regulations.
Pursuant to the relevant provisions, an e-commerce service company is liable for the safety of the personal data it collects in the provision of its services. Personal data shall not be transmitted to third parties or used for other purposes, unless the consent of the owner of the personal data is obtained. Moreover, in order to store the personal data, the operator has to inform the user explicitly about the following:
- a the location where the data is stored;
- b the name for whom the data is stored;
- c the reasons to store the data; and
- d the user’s right to demand correction or deletion of the data.
Any consent obtained from a user after having informed him or her of the above shall not be used for any other purpose.
There is no provision in the laws of Turkey governing the transfer and storage of personal data on cloud. Therefore, we believe that we may interpret this matter using EU regulations by way of analogy. Accordingly, personal data may be stored abroad by obtaining the consent of the owner of the data, provided that the jurisdiction where the data will be stored provides protection at the same level provided in Turkey or in any EU country.
The only exception to this approach concerns telecommunication service companies. Electronic communication services companies may not transfer personal data from Turkey to abroad or store personal data outside of Turkey. However, this restriction is criticised by the industry as being unrealistic, since the sufficiency and safety of servers in Turkey that may store and protect mobile communication data are the subject of debate and controversy.
Violation of personal data is a crime under the Criminal Code. Violation of private life, privacy of communication, eavesdropping on correspondence, obtaining, storing and sharing personal data illegally are prohibited crimes under the Criminal Code, and committing such crimes by using IT systems aggravates the sanction.
Moreover, illegally gaining access to another person’s IT system, remaining there and inflicting damages on the data thereon are categorised as different types of criminal action.
BTK is entitled to take any decisions and measures to protect user rights and ensure safe internet provision. Therefore, BTK has provided technical infrastructure for children filters and family filters to protect the psychological and physical development of children and preserve family preferences.
Iv SPECTRUM POLICY
The UHF band constituting the 300–3000MHz band of the spectrum is used intensely for TV broadcasting, mobile phones, military systems, security and emergency communication, satellite and short-distance low frequency devices.
i Flexible spectrum use
BTK is exclusively authorised by the Electronic Communications Law to manage spectrum and allocate new frequency. BTK allocates radio and TV frequencies between 87.50MHz and 108MHz.
BTK’s spectrum management is flexible, allowing spectrum sharing by way of liberalised methods of spectrum allocation such as spectrum trading, renting and free use (unlicensed sharing) to ease access to spectrum, to enable more users to benefit from the spectrum and to achieve maximum efficiency. BTK also benefits from new technologies that are based on interference control and power limitation, such as dynamic spectrum access, ultra wideband, mesh networks, software-defined radio, cognitive radio and smart antennae.6
ii Broadband and next-generation mobile spectrum use
Due to intense demand for services, BTK has approved applications for broadband projects by taking into consideration the free market competition conditions and consumer interests.
As mobile broadband services become much more widespread in Turkey, the establishment of new generation networks and the use of smartphones is rapidly increasing. An increase in the use of mobile devices has rendered the performance of the network insufficient, and new investment is required to increase the network capacity.
In addition to new investment in the network, the allocation to operators of additional lower frequencies of UHF band is very important, as lower frequencies provide ideal coverage, especially for rural areas, and provide a quality transmission capacity with fewer base stations.
The expansion of mobile communication, new technologies and internet-based electronic communication rendered IPv4 address blocks insufficient to satisfy the growing requirements, and these gave way to IPv6, which has a connection capacity for billions of devices.
i Restrictions on the provision of service
Pursuant to Law No. 6112, the content of TV and radio programmes may not be monitored, and interference with the content may occur before they are broadcast. Broadcasting may not be suspended even in extraordinary circumstances; however, due to compelling reasons to protect the national security, or if the public order is very likely to be seriously disturbed, the Prime Minister or the competent minister may order a temporary broadcasting prohibition.
Broadcasts shall not threaten the unity and independence of Turkey, constitute hate speech, encourage terrorism and separatism, praise crime, encourage violence, be contrary to national values, cause unfair competition, abuse women or violate gender equality. Finally, any images that may encourage habits that may reduce the life quality of children and youths shall be broadcast with a censor (for instance, a cigarette is substituted by a straw or flower).
ii Digital switchover and internet delivered video content
Frequency allocations to broadcasting companies will be elevated to multiplex capacity pursuant to the Regulation on Transmitter Installation and Operation Companies and Multiplex Enterprises. This Regulation and the implementation thereof will provide the infrastructure for upcoming amendments to the media legislation, and ensure Turkey’s compliance with the decision adopted by the International Telecommunications Center regarding the transition to digital broadcasting and the relevant EU regulations.
The Regulation adopts the digital broadcasting technology, and determines the broadcasting quality as DBV-T 2 and the maximum resolution as MPEG-4.
Accordingly, transmitter installation and operation companies have to be authorised to transmit broadcasts and make broadcasts in line with international broadcasting standards.
Transmitter installation companies have to treat licensed broadcasting companies impartially and equitably.
Digital broadcasting will introduce the following changes:
- a improve the broadcasting standards and increase the quality of broadcasts;
- b all the broadcasting companies will use the same antenna tower or transmitter;
- c there will be no lack of capacity and all the channels can be viewed;
- d broadcasters will have data about the location, time and viewer numbers of their broadcasts;
- e consumers will either have to acquire TV sets suitable to watch digital broadcasting or use a set top box;
- f TV will gain mobility, and more TV channels will be available under more affordable conditions on mobile devices; and
- g contextual cell-based adverts and marketing will be available.
iii Mobile services
The transition from analog broadcasting to digital broadcasting also covers telephone services, and will require improvements of the relevant services.
The number of 3G subscribers increased from 51 million in the first quarter of 2014 to almost 60 million in the first quarter of 2015. The number of mobile broadband subscribers who obtained mobile internet services reached almost 34 million. The total annual mobile internet use was 107.970TByte by the first quarter of 2015, and the total amount of mobile traffic was 52.2 billion minutes. The main portion of the traffic (89.7 per cent) is mobile-to-mobile.7
As evident in the above-mentioned data, the use of broadband mobile internet on GSM operators is increasing. However, digital broadcasts will increase the quality of GSM services and make them accessible in remote rural areas. Moreover, transition from analog to digital broadcasting will allow spectrum allocation up to 900MHz in mobile services.
Vi THE YEAR IN REVIEW
2014 and 2015 have seen significant technological developments in both the world and Turkey. Competition among the technology companies has increased, and new pieces of legislation have been introduced.
The number of authorised mobile service providers has increased, use of broadband has become widespread, and there has been a transition from analogue broadcasting to digital broadcasting.
Announcements made by BTK in 2015 indicate that it will mainly take into consideration the following parameters in its new legislative actions: technological necessities, harmonisation with the EU, maintaining competition among companies and operators, and the protection of consumer rights.
Based on such principles, legislation concerning consumer rights in the telecommunications industry has been amended, and the right of withdrawal has been introduced. BTK has retained its right to intervene with tariffs to prevent unreasonable pricing policies.
As discussed above, new provisions have been introduced for the protection and processing of personal data. New legislation has also been introduced on e-commerce, mobile payment and e-money, defining actors and liabilities. Such legislation has allowed actors to provide such services and to compete in this regard against the banks.
There have also been some adverse developments regarding the use of fundamental rights on the internet based on undemocratic amendments introduced in Law No. 5651, and access to tens of thousands of websites has been restricted. For example, access to Twitter and YouTube has been restricted numerous times, despite the fact that they were reinstated by two different decisions of the Constitutional Court in April 2014.
VIi CONCLUSIONS and OUTLOOK
The digital economy will continue to influence all aspects of the economy in Turkey. The large amount of room for the digital economy to grow in Turkey is encouraging further investment, and will cause a steady increase in the portion of the digital economy in the overall economy.
OECD’s most recent Digital Economy Report draws attention to the fact that Turkey ranks second in the world in its use of internet on smartphones. Along with developments in the transition to 4.5G and digital terrestrial broadcasting, the use of internet on smartphones and mobile devices and relevant markets will continue to increase.
IPTV applications, wearable technology and 3D printer systems will also continue to grow rapidly in Turkey.
1 Burçak Ünsal and Okan Gündüz are partners at Ünsal Gündüz. The information contained in this chapter is accurate as of October 2015.
2 WeAreSocial’s Compendium of Global Digital Statistics, Digital, Social & Mobile, 2015.
3 Turkish Statistical Institute, 9 September 2015.
4 GSMA, Digital Inclusion and Mobile Sector Taxation, 2015: www.gsma.com/publicpolicy/tax/research-and-resources.
6 BTK, 2010.