15 June 2011 Wednesday                                               Official Gazette                                                      No. 27965

 

 

By-Law on Administrative and Financial Conditions with which Media Service Providers and

Platform and Infrastructure Operators are required to comply

 

 

 

CHAPTER ONE

Purpose, Scope, Statuary Basis and Definitions

 

 

Purpose and Scope

ARTICLE 1 – (1) The purpose of this By-Law is to determine the procedures and principles in relation to the broadcasting license, broadcasting transmission authorization, share transfer and administrative and financial conditions required to be complied by media service providers and platform and infrastructure operators.

 

Statuary Basis

ARTICLE 2 – (1) This By-Law has been prepared on the basis of 19, 20, 23, 27, 37, 46, 47. Articles and Provisional Article 2 of the of the Law No. 6112 dated 15/02/2011 on the Establishment of Radio and Television Enterprises and Their Media Services.

 

Definitions

ARTICLE 3 – (1) For the implementation of this by-law:

a)     ‘Infrastructure operator’ means the organization operating the infrastructure for the transmission of media services,;

b)    ‘Transfer agreement’ means any notarized agreement, subject to the Supreme Council’s approval, made between the enterprise transferring its broadcasting license and the enterprise taking over it;

c)     ‘On-demand media service’ means a media service provided for the viewing or listening of programs at any moment preferred by a user and at his/her individual request on the basis of a catalogue of programs to be selected by a media service provider;

ç) ‘the Law’ means the Law No. 6112 of 15 February 2011 on Radio and Television Enterprises and Their Media Services;

d)    ‘Media service provider’ means the legal person who has the editorial responsibility over his/her choice of the content of the radio, television and on-demand media services and determines the manner in which they are organized and broadcast;

e)    ‘Platform operator’ means an enterprise which transforms its multiple media services into one or more than one signal and provides their transmission via satellite, cable and similar networks to be received by its subscribers in an encrypted/non-encrypted mode;

f)      ‘Radio broadcast service’ means any audio and data broadcast other than personal communication services made through terrestrial, cable, satellite and other networks;

g)     ‘Television broadcast service’ means an audiovisual media service, encrypted or unencrypted, provided by a media service provider for simultaneous viewing of programs on the basis of a broadcasting schedule;

ğ) ‘Total income from commercial communications’ means a total amount of gross income obtained from commercial communications which media service providers declare to the Supreme Council within the scope of Article 41 of the Law;

h)    ‘The Supreme Council’ means the Radio and Television Supreme Council;

ı) ‘Foreign capital’ means a capital in cash or a real capital in a convertible currency enabling any natural person who is vested with a citizenship of other countries outside of the Republic of Turkey and the legal person which is established in such countries to buy a share or get into a partnership in media service providers under the jurisdiction of the Republic of Turkey;

i)      ‘Broadcasting license’ means the certificate of permission issued separately for each broadcasting type, technique and network, by the Supreme Council to media service providers on the condition that they meet the conditions stated in this Law and by-laws and other regulations prepared in accordance with this Law in order for them to make broadcast using any kind of technology via cable, satellite, terrestrial and similar networks;

j)      ‘Broadcaster’ means a media service provider of a television and/or a radio broadcasting service;

k)     ‘Broadcast network’ means cable, satellite, terrestrial and similar transmission environments.

 

 

CHAPTER TWO

Media Service Providers

 

 

Conditions of establishment and share percentages

ARTICLE 4 – (1) Each media service provider is obliged;

a)     to have been established in status of a joint-stock company in accordance with the provisions of the Turkish Commercial Code and for the purpose of engaging in the issues exclusively specified in Law No. 6112;

b)    to have its exclusive shares as registered shares;

c)     to state clearly the provisions which regulate its shareholding structure and issues of activity in the main contract of its organization;

ç) not to issue a redeemable share in favor of anybody;

d)    not to allow  its preference shares to be owned by any domestic and foreign shareholders.

(2) Each media Service Provider is obliged to include in the main contract of its organization the provisions of the main contract of a sample organization prepared by the Supreme Council and published in the Supreme Council’s web-site

 (3) Each media service provider applying for acquiring for a broadcasting license for the purpose of providing radio, television and on demand broadcast services is obliged to have a sum of paid-in capital not less than the sums as stated below:

 

a) For national terrestrial television                            : 8.320.000-TL

b) For regional terrestrial television                           : 1. 385.000-TL

c) For local terrestrial television                                  : 250.000-TL

ç)  For national terrestrial radio                                   : 1.000.000-TL

d) For regional terrestrial radio                                   : 250.000-TL

e) For local terrestrial radio                                         : 70.000-TL

f) For cable television                                                    : 275.000-TL

g) For cable radio                                                           : 50.000-TL

ğ) For satellite television                                               : 275.000-TL

h) For satellite radio                                                       : 50.000-TL

ı) For on demand broadcast service                           : 100.000-TL

 

In case a media service provider operates the radio, television and on-demand broadcast services altogether, the minimum paid-in capital shall have to be the total calculation of the sums stated above.

(4) Media service providers shall issue and offer capital market instruments to the public in terms of the Capital Market Law No. 2499 of 28/7/1981 and its relevant regulations. In such an event, the Supreme Council’s permission must be obtained before they register with the Capital Market Board. Registration as a requirement is not sought for non-exclusive shares.

 

The number of radio, television and on-demand broadcast service that an enterprise may provide

ARTICLE 5 – (1) A media service provider enterprise shall provide only one radio, one television and one on-demand broadcast service.

 

Restrictions on shareholders

ARTICLE 6 – (1) Political parties, unions, professional associations, co-operatives, associations, societies, foundations, local administrations and companies established by them or of which they are direct or indirect shareholders, stock broker companies and real or legal persons who are direct or indirect shareholders of these companies shall not be granted broadcast license. These incorporations shall not be direct or indirect shareholder of the media service providers

(2) A real person or a legal entity may directly or indirectly hold shares in four media service provider enterprises at the most which provide terrestrial radio and/or television broadcast service.

(3) A foreign real person or a legal entity shall directly hold shares in two media service provider enterprises at the most and the proportion of the total direct foreign capital in a media service provider enterprise shall not exceed fifty per cent of the paid-in capital. If foreign real persons or legal entities hold shares in companies that are the shareholders of media service providers and become indirect shareholders of broadcasters, the chairmen, the vice president and the majority of the board of executives and the general manager of such broadcasters shall have to be Turkish citizens, and the majority of the voting rights in general assemblies of such broadcasters shall have to belong to the real persons or legal entities having Turkish citizenship. In the main contract of the enterprises, the arrangements ensuring these provisions shall be stated clearly.

(4) The shareholders of an enterprise and the persons authorized to manage and represent that legal entity shall not be sentenced for the crimes against the State specified in the abolished first Chapter of the Second Book of Turkish Penal Code No. 765 of 1/3/1926 and in the Fourth Chapter of Turkish Penal Code No. 5237 of 26/9/2004 and the offences provided by the Combat Against Terror Law No. 3713 of 12/4/1991. Even though they have been forgiven except for those with negligent offences, these people shall not also be sentenced due to the violation of the provisions of Article 22 of the abolished Banks Law No. 4389 and the Banking Law No. 5411 of 19/10/2005 and the Law No. 2499 of 28/7/1981, or due to the offences of normal or qualified debit, perpetration, robbery, fraud, forgery, fraudulent bankruptcy and concordat, smuggling, rigging a formal tender and purchases-sales, money laundering, tax evasion or any attempt of tax evasion or connivance in a crime.

(5) The total annual commercial communication income of the media service providers in which a real person or a legal entity is a direct or indirect shareholder shall not exceed thirty per cent of the total commercial communication income of the sector in case of holding shares in more than one media service provider enterprise.

(6) For real persons, shares which belong to the spouses, relatives by blood and by marriage up to and including those of third degree shall be deemed to be appertaining to the same person

 

 

CHAPTER THREE

Organizational Structure of Media Service Providers

 

 

General assembly

ARTICLE 7 – (1) In general assemblies, each shareholder shall have one voting right for his/her each share.

(2) Private media service providers shall organize an ordinary general assembly meeting every year in accordance with the provisions of Turkish Commercial Code, and sent a copy of Turkish Trade Registry Gazette to the Supreme Council within 15 days following its proclamation date.

The vice chairman and members of the board of executives

ARTICLE 8 – (1) A shareholding real person shall be elected as the chairman and a member of the board of executives. Any legal entity shall not be a member of the board of executives. Only a real person who is a representative of a legal entity shall be appointed to the membership of the board of executives and declared to the Supreme Council. In this case, the representative of the legal entity is hereafter responsible towards the enterprise and third parties.

 

General Director

ARTICLE 9 – (1) A media service provider shall appoint a general director by an Executive Board’s resolution.

(2) The general director of a media service provider providing national and regional broadcasts through terrestrial  networks, cable broadcast services though cable networks targeting at more than one province and satellite broadcast services must be at least a graduate of a higher education institution and any person who will be appointed to this position must;

a) be domiciled in Turkey,

b) not to have ever been sentenced due to the offences as specified in Paragraph 4 of Article 6.

 

Manager in charge

ARTICLE 10 – (1) A media service provider shall appoint one or more than one manager in charge by means of a resolution of the Board of Executives provided that the area of responsibility of the Manager in charge has been clearly defined.

(2) The manager in charge of a media service provider providing national and regional broadcasts through terrestrial  networks, cable broadcast services though cable networks targeting at more than one province and satellite broadcast services, must be at least a graduate of a higher education institution and any person who will be appointed to this position must;

a) be a Turkish citizen,

b) be domiciled in Turkey,

c) not to have ever been sentenced due to the offences as specified in paragraph 4 of Article 6.

 

Viewer’s representative

ARTICLE 11 – (1) Each media service provider for the purpose of formulation of a co-regulatory and a self-regulatory mechanism, evaluation of the complaints received from viewers and listeners, presentation of the evaluations to its broadcasting board and the follow-up of their results shall appoint a viewer’s representative at least with a ten years’ professional experience. The information about the viewer’s representative shall be notified to the Supreme Council and be made public by means of its web-site.

 

The number of employees in the news units and employees with press card

ARTICLE 12 – (1) The number of employees who work in the news units with press card shall not be less than 12 persons in television organizations and 3 persons in radio organizations with national broadcasting license; 3 persons in television organizations and 1 person in radio enterprises with the satellite and cable broadcasting license or in the radio enterprises broadcasting regionally; 1 person in television enterprises broadcasting locally.

(2) The employees who work in the news units with their press card are subject to the Law No. 5953 on the Regulation of Relationships between Employees and Employers in Media of 13/6/1952.

 

 

CHAPTER FOUR

 

Application Procedures For a Broadcasting License or a Broadcast Transmission Authorization, Transfer of Shares, Transfer of a Company and Merger, and Transfer of  a Broadcasting license

 

 

 

Documents to be submitted by a media service provider in its application for a broadcasting license

ARTICLE 13 – (1) Each media service provider in its application to the Supreme Council for acquiring a broadcasting license shall deliver the followings:

a)     a petition addressing to the Supreme Council in which its demand is stated;

b)    the broadcasting license application forms which have been filled in accordingly as seen in Appendix-1;

c)     copies of the Turkish Trade Registry Gazette in which the enterprise’s main contract, together with any amendments if there are, is published;

ç) copies of the documents belonging to the authorization of the persons for the representation of the enterprise and the list of the authorized signatures;

d)    a copy of the corporation’s stock ledger or a Turkish Trade Registry Gazette denoting its latest shareholding structure;

e)    a copy of its board of executives’ resolution on a call sign to be used as belonging to the radio enterprise in its broadcasts, a copy of the board of executive’s resolution on the logo to be used as belonging to the television enterprise, its logo or call sign samples of the enterprise to be used in the broadcasts of its programs and commercials, a copy of its application for the trademark registration of the logo or a notarized copy of the agreement signed with the right owner that allows the logo to be used by  itself;

f) copies of the declarations of all partners and executive board members about the national identification numbers, permanent residence addresses and that they have had no record of conviction – owning that hinders anyone in becoming a partner – and  copies of the notarized passports of the foreign national partners and executive board members;

g) Copies of the resolution of the board of executives on the appointment of the persons specified in this By-law and such persons’ declarations stating that they had no record of conviction hindering them in obtaining the national identification numbers and permanent residence addresses, copies of the graduation certificates belonging to the persons required to have been graduated from a higher education institution as stated in the By-Law and moreover, the notarized copies of the passports of the foreign national persons;

ğ) Information about the envisaged content of its programme services, its overall broadcasting schedule and programme airtime scheduling, information on its technical infrastructure service and information on the purchased and/or rented installations, instruments, equipments and services;

h) its declaration about the enterprise’s corresponding address, web address, e-mail address, studio address, telephone and fax numbers.

 

(2) Any media service provider applying for a broadcasting license shall submit the above-mentioned information and documents thoroughly as signed by an authorized signatory and with the corporate seal.

(3) If the Supreme Council finds that a media service provider has delivered some missing information or documents in making its application for a broadcasting license, or if the Supreme Council requests for any other additional information and documents plus over the media service provider’s license application dossier, that media service provider in question is obliged to deliver them to the Supreme Council within a period of ninety days;

(4) In their applications for acquiring another broadcasting license to broadcast via other networks or for transferring its broadcasting license to another media service provider, presenting to the Supreme Council solely the amending documents and the documents needing to be updated shall be adequate for the media service providers who have already had a broadcasting license and are presently sustaining their broadcasts;

(5) If any changes occur in the information and the documents delivered in the framework of this Article, the amendments shall be notified to the Supreme Council within a month at the latest. 

 

 

Necessary Information and Documents to be delivered by the Platform and Infrastructure Operators in their Applications

ARTICLE 14 – (1) Each platform operator or each infrastructure operator is obliged to get a broadcast transmission authorization from the Supreme Council in order to engage in the activity of the transmission of broadcast services. In its application each platform operator and each infrastructure operator shall submit to the Supreme Council:

a)     the application forms by duly filling in as placed in Appendix-2 for platform operators and as placed in Appendix-3 for infrastructure operators;

b)    a petition addressing to the Supreme Council in which its demand is stated;

c)     copies of the Turkish Trade Registry Gazette in which the enterprise’s primary contract comprising the information on the activities of the transmission of broadcast services and, if there are, all the title amendments is published;

ç) the certificate that it has received from the Information and Communication Technologies Authority in the framework of  Electronic Communications Law No. 5809 of 5 November 2008;

d)    its declaration comprising the enterprise’s corresponding address, website, e-mail address, address of its broadcast transmission centre’, telephone and fax numbers

(2) If any changes occur in the information and the documents delivered in the framework of this Article, the amendments shall be notified to the Supreme Council within a month at the latest.

 

Transfer of Shares and Company, and Merger

ARTICLE 15 – (1) Transfer of the shares of a joint stock company to which a broadcasting license has been granted shall be notified to the Supreme Council together with the information on the names and surnames of the shareholders, its shareholding structure and the vote proportions subsequent to the share transfer within a period of thirty days beginning from the validation date of that transfer.

(2) It is obligatory for a media service provider to obtain permission from the Supreme Council before it starts the procedures of its takeover by or its merger with another company and to deliver to the Supreme Council a copy of the Turkish Trade Registry Gazette declaring the completion of the said procedures within a period of thirty days following the validation of the takeover or the merger.

(3) If any contradiction with the provisions envisaged by the Law and the By-Laws is found in its company structure as a result of the procedures of its share transfer, takeover or merger, it is obligatory to remove that contradiction within a time-frame not exceeding the ninety days to be allowed by the Supreme Council following the completion of the said procedures. Otherwise, the broadcasting license of that media service provider will be cancelled.

(4) Mergers, takeovers and transfers of the registered shares shall be without prejudice to the   provisions of Article 19 of the Law, the Law No. 2499 and the provisions of its related legislation as well as the provisions of Law No. 4054 of 7 December 1994 on Protection of Competition.

Transfer of a Broadcasting License

ARTICLE 16 – (1) An enterprise which has been granted a terrestrial broadcasting license by the Supreme Council shall not transfer its license rights. An enterprise which has taken the decision of ending its broadcasting operations shall return its broadcasting license to the Supreme Council.

(2) In order to transfer the broadcasting licenses other than terrestrial broadcasting licenses;

 

a) Any media service provider which has transferred its broadcasting license shall submit to the Supreme Council;

1- its clearance certificate that it has received from the Supreme Council authenticating that it has fulfilled its all administrative, financial, legal and penal obligations in relation to the Supreme Council and so that there has been no financial co-relation left between itself and the Supreme Council;

2- Its up-to-date documents that it has received from the related institutions authenticating that it does not have any kind of tax debt and it has no premium debts left to be paid to the Social Insurance Institution,

3- A copy of the Resolution of its board of executives concerning the transfer of its broadcasting license that it possessed within the scope of the Law,

4- A notarized copy of its transfer agreement to the Supreme Council,

b) Any media service provider taking over the broadcasting license shall submit to the Supreme Council;

1-the information and the documents as specified in Article 13;

2-A notarized copy of the transfer agreement documenting that it has come into the agreement with the transferring enterprise.

(3) If both the transferee and the taking over enterprise fulfill the above-stated obligations together with the other conditions imposed by the Law and the related By-Laws and the Supreme Council ascertains that the media service provider taking over has the technical competence as a result of its on-site inspection, the Supreme Council shall permit the transferring of the broadcasting license along with the sanctions, if present, belonging to the transferring enterprise.

(4) Before the Supreme Council’s registration process of the transfer has been completed none of the taking-over enterprises shall make broadcasts on behalf of themselves via the network that they have taken over.

(5)  The License fees that have been paid by the transferee shall be valid and the taking over enterprise shall pay the remainder belonging to the remaining time of the license term.

 

Forfeiture of a license, revocation of license, administrative and judicial sanctions

ARTICLE 17 – (1) If one of the licensing requirements sought under the Law disappears; the related media service provider shall be allowed a period of thirty days to restore its conformity with that requirement. The broadcasts of that enterprise that does not meet the requirement despite the time allowed shall be suspended for a period of three months. If the requirement is not met within the course of that time, the broadcasting license of that enterprise shall be revoked and its broadcasts shall be suspended.

(2) The broadcasting license of an enterprise who has been ascertained by the Supreme Council after the grant of license that it did not comply with the obligations imposed by the laws and regulations or terminated its conformity in obtaining its license later on, and who has not corrected its positions within the period of time allowed by the Supreme Council and who has been detected that it acquired to ensure its conformity with the conditions of being granted a broadcasting license by fraudulent means, shall be cancelled. 

(3) If a media service provider is adjudged a bankrupt, if its legal entity ends or if its broadcasting permission is canceled by a Court decision, its broadcasting license is revoked.

(4) if a media service provider, although it has owned a broadcasting license, provide broadcasts that fall outside of its license type or installs a transmitter without any authorization, it shall be warned by the Supreme Council and for the anyone still sustaining its unauthorized broadcasts in spite of all the warnings, the provision in Paragraph 1 of the Article 33 of the Law shall be implemented.

(5) For any real or legal person whose total annual commercial communication income exceeds over the ratio specified in the sub-paragraph (d) of Paragraph 1 of Article 19 of the Law and who has not taken necessary actions on the Supreme Council resolution within its allowed period of ninety days, a four-hundred thousand Turkish Liras administrative fine for the each month of not acting accordingly shall be imposed on that person.

(6) Upon receiving the notification of the Supreme Council on its resolution, platform and infrastructure operators shall suspend the transmission of broadcast services of the media service providers who have not obtained their broadcasting licenses from the Supreme Council and whose broadcasting licenses have been revoked by the Supreme Council, and those of the media service providers who are under the jurisdiction of another country but whose broadcasts have been ascertained by the Supreme Council as infringing the international treaties to which the Republic of Turkey is party and the provisions of this Law. The transmission authorization of the operator who does not suspend the transmission of such broadcast services or does not fulfill the requirements of its authorization certificate in spite of such a notification shall be revoked and this case shall be notified to the Information Technologies and Communication Authority

(7) Application of anyone whose declaration in the required application documents is found as misstatements shall be deemed invalid, and for those whose misstatements are found to have been made deliberately by means of fraudulency, the Supreme Council shall make its criminal complaint to the Chief Public Prosecutor's Office.

 

 

CHAPTER FIVE

Miscellaneous and Final Provisions

 

Logo and call sign

ARTICLE 18 – (1) Any media service provider is obliged to use one single logo and a call sign throughout the broadcast durations.

(2) Any kind of name and any block graphics illustrating that name can be used as a logo and any sound announcement can be used as a call sign provided that it complies with the Laws and regulations and does not contradict with the public order and morality.

(3) Every logo and call-sign whose registration by the Supreme Council is obligatory can be altered only by taking the consent of the Supreme Council. It is also obligatory to present the brand registration application to the related authority for the registration of the logos and call signs by the Supreme Council. Following the completion of the brand registration process, the related enterprise shall notify the Supreme Council within a period of thirty days about the registry.

(4) Once a logo or a call sign has been registered with the Supreme Council, it shall not be used by more than one broadcasting enterprise all across Turkey.

(5) It is essential for each television broadcast service providing enterprise not to alter its logo and distort the basic characteristics of its block graphic during the broadcasting of commercials. It is obligatory for both a logo of broadcast and a logo of commercial to be clearly distinguishable from each other. A commercial’s logo cannot be movable and variable and its transparency cannot exceed over 50 per cent.

 

Information on the identification details of a media service provider

ARTICLE 19 – (1) Each media service provider is obliged to notify the address of its the web-site in applying for a broadcasting license and to publish;

a)     the name of company,

b)    its correspondence address, telephone and e-mail information,

c)     its logo/call sign,

ç)  the information about its broadcasting license and broadcasting networks,

d)    the name, surname and contract information of its accountable manager and viewer representatives in an up-to-date manner in its web-site and notify such information to the Supreme Council.

(2) Each media service provider is obliged to update its web-site and to ensure keeping the information stated in first paragraph as updated.

(3) Each media service provider is obliged to notify the information about the changes of its broadcasting centre and contact address to the Supreme Council within 15 days at the latest with the related resolution of its board of executives.

 

By-law to be abrogated

ARTICLE 20 – (1) The by-law on Private Radio and Television Enterprises Administrative and Financial Conditions No. 22229 of 16/3/1995, which was put into force by being published in Official Gazette, has been abrogated.

 

Obviation of deficiencies

PROVISIONAL ARTICLE 1 – (1) Each media service provider shall level up the sum of its minimum paid-in capital and its company structure in accordance with the Law and this By-Law within 6 months beginning from the date when this By-Law come into effect and notify about their leveling in writing to the Supreme Council.

(2) Broadcasts of a provider who cannot obviate its deficiencies within this period shall be suspended by the Supreme Council and that provider shall be allowed an additional time by the Supreme Council.  The broadcasting license of any provider who has not fulfilled its obligations within that additional time shall be revoked.

(3) Each media service provider shall build up its web-site as specified in Article 19 within six months beginning from the date when this By-Law is published in the Official Gazette and notify to the Supreme Council about it.

(4) Each media service provider shall ensure the number of its employees with the press card as specified in Article 12 within one year at the latest from the date when this By-Law is published in the Official Gazette

 

Entry into force

ARTICLE 21 – (1) This By-Law shall come into effect on the date of its publication.

 

Implementation

ARTICLE 22 – (1) The provisions of this By-Law shall be implemented by the Radio and Television Supreme Council.