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EUROPE, MIDDLE EAST AND AFRICA: TURKEY
RTUK’S NEW IMPLEMENTATION PLAN ON SATELLITE BROADCASTING LICENSES IN TURKEY
Authors: Uğur Aktekin & Başak Gürbüz, Mehmet Gün & Partners
The new Law on Principles of Radio and Television Broadcasts (“RTUK Law”) issued in accordance with the European Convention on Transfrontier Television entered into force on March 03, 2011 in Turkey. The RTUK Law brings major changes in terms of broadcasting principles. In addition to this, RTUK is now in the process of a new development affecting the foreign based broadcasters that make broadcasts in Turkey.
As a highly debated and agenda topic nowadays in Turkey, RTUK imposes an obligation on foreign based broadcasters that make broadcasts via Turkish satellite platforms to obtain a local satellite license for a television, radio or on demand broadcast service channels. The reason behind this obligation is the intent to unify all the media service providers broadcasting via satellite platforms and cable systems in Turkey under one governing law, whether they are established in Turkey or not. Namely, RTUK is not able to control the content of the programs which are foreign based and made via Turkish satellites or satellite platforms whereby is not able to follow up and penalize the foreign media service providers making incompliant broadcasts under RTUK Law as they do not have any local corporations in Turkey.
In order to overcome this situation, RTUK issued a new directive which came into force on March 26, 2012 namely the Directive on Foreign Based Radio and Television Broadcasts (the “RTUK Directive”). Article 4.3 of the RTUK Directive reads as follows:
“In case a broadcasting institution will re-broadcast the radio, television or on demand broadcasts that have been broadcast by a media service provider institution which is under the jurisdiction of another country via satellite and/or cable belonging to the Republic of Turkey and in a way to put additional programs in the said broadcasts including the commercial communication broadcasts; in other words in a way to change the program content, then it shall fulfill the conditions for the media service provider institutions mentioned in the RTUK Law and the relevant Regulations, shall obtain a broadcasting license from RTUK, shall perform other obligations envisaged in the RTUK Law and shall pay a share over its commercial advertising revenue to RTUK…”
With the implementation of this Directive, the offshore broadcasts channeled to Turkey via Turkish satellite platforms and cable systems that are Turkish dubbed or include insertion of Turkish ads or any content, are no longer exempt from the local satellite broadcast license requirements. Otherwise, RTUK will address the infrastructure or platform operator to stop the broadcasts of such media service providers. If they do not comply with this request of RTUK, their broadcast transmission authorization will be cancelled as set out in Article 29/3 of the RTUK Law.
The RTUK Directive also implicitly imposes the referred foreign based media service providers to incorporate a local joint stock company in Turkey in order to apply for a license before RTUK. Namely, under Article 19/a of the RTUK Law, the broadcasting license can only be granted to local joint stock companies incorporated under Turkish Commercial Code. That being the case, the local broadcasting company will also have to comply with the shareholding structure requirements set out for all local broadcasting companies.
The RTUK Law and Directive also obliges the foreign media service providers to comply with all of the broadcasting principles set forth in the RTUK Law. The media service provider would have to pay a share over its commercial advertising revenue to RTUK as well for the Turkish ads broadcast on its channel.
Although there is still an uncertainty regarding the deadline for incorporation of the local companies to apply for the license, RTUK is eager to attribute a reasonable time to the foreign broadcaster companies being aware that it would take time to incorporate new companies. Notwithstanding this, the foreign broadcaster companies are not happy with this new development and are trying to find alternative ways to circumvent these requirements, but it seems that RTUK will not accept any alternative ways as it is very clear and precise on the requirement of a local license; i- should the Turkish satellite be used and ii- Turkish content is added in the original broadcast. We will see how the case will develop in the upcoming days.
The current restrictions imposed on the shareholding structure of private broadcast services provider under the new RTUK Law Article 19 (f) is that, direct foreign shareholding cannot exceed 50% of the total share capital. The total paid in capital of satellite TV broadcasting companies cannot be less than TL 275, 000.- (which is approximately € 120,000.-) under the Regulation on Administrative and Financial Terms to be Followed by Media Service Providers and Platform Operators. If there is an indirect foreign shareholding in a broadcast service provider, then the chairman, the vice chairman and the majority of the board of directors and the general manager must be Turkish citizens and the majority of the voting rights in the general assembly must belong to real persons or legal entities having Turkish citizenship.