ICTA's Competencies at Dispute Resolution Process
7/9/2015Electronic Communications Law No.5809 published in the Official Gazette dated 10/11/2008 and numbered 27050
Electronic Communications Law No. 5809 gives authorization to ICTA (Information and Communications Technologies Authority) about resolution of disputes that is one of the solutions apart from court decision. In this context, the first clause of the Article 2 titled ‘Scope’ imply that implementation of resolution procedures is performed according to this Law. Moreover, the provision of the first clause of the Article 6 titled ‘Competencies of the Authority’ “In accordance with this Law, to conduct the dispute resolution procedure between the operators when necessary, and to take necessary measures that are binding until otherwise decided by the related parties in case of no settlement” shows the power and competency of the Authority in dispute resolution process. In the first and second clauses of the Article 18 titled ‘Access agreement and settlement of disputes’ the competencies of the Authority about resolution of access disputes are elaborated in detail. According to regulation as mentioned above “(1) Access contracts shall be signed between the sides by negotiating freely on the condition of not including any provision contrary to the relevant legislation and Authority regulations. In case that no contract is signed between the sides within maximum two months beginning from the demand of access or in case that any dispute under the scope of this Law occurs due to the current access contract then the Authority shall be entitled to initiate dispute resolution procedure between parties upon the request of any party and within the principles it will determine, and/or take other measures which it considers necessary in terms of public interest including determination of the interim rates or reject the dispute resolution request” and “(2) In case that the parties do not reach an agreement during the dispute resolution process, the Authority shall be entitled to determine the provisions, terms and charges of the access contract, which constitute the subjects of dispute, within two months except for the specified exceptional cases. The determined provisions, terms and charges shall be applied until otherwise decided by the operators within the frame of the legislation and Authority regulations”.
According to this provision of Law, in case that the operators cannot reach an agreement on access, including interconnection, within maximum two months from the access demand or disagreement of both sides on available access agreement, with the application of one side the Authority can perform dispute resolution process according to determined principles, take precautions which is necessary for public benefit such as temporary price or reject the reconciliation demand. According to provision of Law mentioned above, the Authority does not have to accept every reconciliation demand and run dispute resolution process. By means of this regulation, the Authority can make necessary intervention about provisions, conditions and prices of disagreement subjects between sides that is essential for public benefit. In this regard, access reconciliation application done to the ICTA is evaluated and concluded by taking into account available legislation, common regulatory procedure together with this regulations’ purpose and scope and operators’ rights and obligations.
In accordance with Article 16/4 of Law, access agreements should be regulated in a way that do not lead to impede competition and consumer rights as conducting electronic communication services and operating infrastructure. Reference Access Offers approved by the Authority has a critical role to the fulfillment of these issues. Since, with the publication of reference access offer uncertainties about access agreements will be minimum between operators working in the sector, especially new entrants, and operators that are obliged to provide access. Moreover, by means of reference access offer these operators can easily make their forward plans. In case of being disagreement between operators; provisions, conditions and prices that is set in reference access offer will shed light to resolution process.
By Law On Access and Interconnection published in the Official Gazette dated 08/09/2009 and numbered 27343
By Law On Access and Interconnection published in the Official Gazette dated 08/09/2009 and numbered 27343 in accordance with the provisions of Electronic Communications Law No.5809 includes principles and procedures of legal competency of the Authority while applying dispute resolution process. Article 18 of the By Law titled ‘Resolution of disputes’ which shows the rights and obligations of operators about this issue is regulated as followed:
“(1) In case that no agreement is established within utmost two months following a new access request or that any dispute arises within the scope of existing access contract under the scope of this By Law, any one of the parties may apply to the Authority for the dispute settlement procedure to be actuated.
(2) Applications of the operators that apply to the Authority for dispute resolution shall include the following items:
a) Names and titles of the parties,
b) Date on which the access request was made,
c) Scope and duration of the access request,
d) Offered price for the requested access and its grounds,
e) Issues that the parties cannot agree on,
f) All types of information and document regarding the items enumerated above.
(3) In case that the operator who made an application has not submitted the necessary documents, the Authority requests from the operator to complete deficiencies within a specified period. The application will be regarded as rejected in case the deficiencies are not completed within the specified period.
(4) The Authority notifies the other operator within seven days that dispute resolution has been requested from itself. The operator submits its views, and information and documents regarding the issue to the Authority within utmost fifteen days upon the receipt of notification.
(5) The Authority shall, within thirty days following the date when information and documents in question have been received, decide whether to accept the dispute resolution request taking into consideration the obligations imposed on the operators in the framework of the relevant legislation, regulations issued by the Authority with regard to the same or similar issues, existence of economic and technical alternatives to the requested service, and possibility that dispute resolution methods except for those enshrined in this Article including negotiation and mediation that the parties can apply more effectively resolve the existing dispute. In case the request has been rejected, the relevant operators shall be notified. In case the Authority has accepted the dispute resolution request, it shall invite the operators to the dispute resolution meeting. Dispute resolution process is commenced by taking records of the disputed issues in this meeting.
(6) The Authority is authorized to determine terms, conditions and prices of access agreement that are the subject-matter of the dispute within two months following the date when the dispute resolution commenced should the parties cannot agree in the process of dispute resolution by assessing information and documents submitted by the parties in respect of quality and quantity in accordance with the principles laid down in Article 5. However, in case the request for dispute resolution is related to a service not offered beforehand, the content of the request requires a comprehensive study and information gathering process, and in the other exceptional cases the Authority deems necessary, this period may be extended with a further two months.
(7) The Authority may request from the parties all the information and documents it deems necessary under the scope of this Article. The parties are obliged to submit the information and documents in question to the Authority within the period that will be determined by the Authority.
(8) Without prejudice to the provisions included in the reference access offers and regulations of the Authority, the terms, conditions and prices determined by the Authority shall enter into force on the date when the operator who requested dispute resolution applied to the Authority.
(9) The Authority shall take all sorts of measures the public interest requires, including the determination of interim tariff, during the process of dispute resolution. Operators are obliged to comply with the measures taken by the Authority, including interim tariff. The Authority, whilst determining the interim tariff, shall take into consideration the prices that were being implemented previously and/or the provisions of Article 12. After the final price has been determined by the Authority, operators make payments to each other retrospectively on the basis of this price.
(10) Unless subsequent regulations of the Authority otherwise require or unless otherwise agreed with the consensus of the operators under the framework of relevant legislation, the terms, conditions and prices the Authority has set shall continue to be applied.”
The above quoted- article of the By Law is primarily based on common agreement of the parties (contractual freedom). If access and interconnection disagreement continuing for a specific time (at least 2 months), parties have a right to apply Authority to be run dispute resolution process. Authority’s decision whether to accept resolution application or not by taking into account obligations imposed to operators and regulations done by same or similar issues is determined under the provision of this Article. In case of acceptance of resolution demand the Authority has competency to take necessary precautions (including tentative price setting) in order to finalize disagreement and designate provisions, conditions and prices of access agreement within two months (this time can be extended for another two months in exceptional cases) until parties have an agreement.