Conciliation Procedure
Law No. 5809 on Electronic Communications
Law No. 5809 on Electronic Communications (EHK) grants our Institution the authority to implement the reconciliation method, one of the out-of-court resolution mechanisms. In this scope, the first paragraph of Article 2 of the EHK titled "Scope" stipulates that the execution of reconciliation activities is subject to the said Law. In addition, subparagraph (d) of the first paragraph of Article 6 of the Law titled "Duties and Powers of the Authority" states: "When necessary within the framework of this Law, to conduct reconciliation procedures between operators, and in the event that reconciliation cannot be achieved, to take the necessary measures that will be valid between the relevant parties until otherwise agreed." This provision explicitly indicates the Authority's reconciliation authority. In this context, the first and second paragraphs of Article 18 titled "Access Agreements and Resolution of Disputes" detail our Institution's authorities regarding reconciliation in the resolution of access disputes. The relevant provision states: "(1) Access agreements are freely negotiated and signed between the parties, provided that they do not contradict the relevant legislation and Authority regulations. In the event that an agreement cannot be established within a maximum of two months from the access request between the parties or if any dispute arises under this Law in the existing access contract, upon the application of any of the parties, the Authority is authorized to conduct reconciliation procedures between the parties in accordance with the principles it determines and/or to take other measures it deems necessary in terms of public interest, including the determination of interim fees, or to reject the reconciliation request.
(2) In the event that the parties fail to reach an agreement during the reconciliation process, the Authority is authorized to determine the provisions, conditions, and fees subject to the dispute in the access agreement within two months, excluding the exceptional cases specified. The determined provisions, conditions, and fees shall continue to be applied by the operators until otherwise agreed within the framework of the legislation and Authority regulations."
According to this provision of the Law; in the event that an agreement cannot be established within a maximum of two months from the access request between the parties or if any dispute arises under this Law in the existing access contract, upon the application of any of the parties, the Authority is authorized to (i) conduct reconciliation procedures between the parties in accordance with the principles it determines, (ii) take other measures it deems necessary in terms of public interest, including the determination of interim fees, (iii) reject the reconciliation request. According to the said provision of the Law, our Institution does not have a binding authority or an absolute duty to accept every reconciliation request that comes before it and to conduct reconciliation procedures; it is equipped with reconciliation authority within the framework of the principles determining the purpose and scope of the Law. The relevant provision envisages that our Institution, rather than establishing provisions, conditions, and fees that will be valid between the parties that cannot reach an agreement in all circumstances, should make interventions necessary in terms of public interest. Accordingly, applications made to our Institution regarding access disputes are evaluated and concluded by primarily taking into account the provisions of the current legislation, general regulatory transactions, the purpose and scope of these regulations, and the rights and obligations of operators.
Pursuant to Article 16/4 of the EHK; access-related agreements must be arranged in a way that does not hinder competition in the provision of electronic communications services and the operation of infrastructure and does not violate consumer rights, and reference access offers approved by the Authority are of critical importance for ensuring compliance with these matters. Because, with the publication of the reference access offer, uncertainties in the access agreements to be made by operators operating in the sector, especially newcomers to the market, with access-obligated operators will be minimized, and those operators will be enabled to make forward-looking plans. Another important issue is the determination of provisions, conditions, and fees in reference access offers, which will also shed light on reconciliation processes to be applied in case of disputes between operators, thereby largely preventing access disputes. Nevertheless, in determining the provisions, conditions, and fees regarding emerging access disputes, the reference access offers approved and put into effect by our Institution are primarily taken into consideration.
Access and Interconnection Regulation published in the Official Gazette dated 08.09.2009 and numbered 27343
Based on the provisions in the EHK, the Access and Interconnection Regulation, published in the Official Gazette dated 08.09.2010 and numbered 27343 and entered into force, contains the procedures and principles for the implementation of our Institution's legal reconciliation authority. Article 18 of the Regulation, titled "Resolution of Disputes" and detailing the matter and indicating the rights and obligations of operators regarding the subject, is regulated as follows:
"(1) In the event that an agreement cannot be established between the relevant operators within a maximum of two months from a new access request or if any dispute arises under this Regulation in the existing access contract, any of the parties may request the Authority to conduct reconciliation procedures.
(2) Applications of operators requesting reconciliation from the Authority must include the following matters.
a) Names and titles of the parties,
b) Date of the access request,
c) Scope and duration of the access request,
ç) Offered fees and justifications within the framework of the access request,
d) Matters on which the parties could not reach an agreement,
e) All kinds of information and documents regarding the above-mentioned matters.
(3) In the event that the applying operator does not submit the necessary documents, the Authority requests that the deficiencies be completed within the specified period. If the said deficiencies are not completed within the given period, the application is deemed rejected.
(4) The Authority notifies the other operator within seven days that a reconciliation request has been made to it. The operator submits its opinions and information and documents regarding the matter to the Authority within fifteen days following the receipt of the notification.
(5) Within thirty days from the date of receipt of the said information and documents, the Authority decides whether to accept the reconciliation request by taking into account the obligations imposed on operators under the relevant legislation, regulations made by the Authority on the same or similar matters, the existence of economic and technical alternatives to the requested service, and the possibility that dispute resolution methods other than the reconciliation procedure envisaged in this article, including negotiation and mediation, may resolve the existing dispute more effectively. In the event of rejection of the request, notification is made to the relevant operators. If the Authority accepts the reconciliation request, it invites the relevant operators to the reconciliation meeting. The reconciliation process begins with the minutes of the dispute matters at the said meeting.
(6) In the event that the parties fail to reach an agreement during the reconciliation process, the Authority is authorized to determine the provisions, conditions, and fees subject to the dispute in the access agreement by evaluating the information and documents submitted by the parties in terms of quality and quantity in accordance with the principles specified in Article 5, within two months from the start date of the reconciliation process. However, in cases where the reconciliation request relates to a service not previously offered, the content of the request requires a comprehensive study and information collection process, and other exceptional cases deemed necessary by the Authority, this period may be extended by a maximum of two more months.
(7) The Authority may request any information and documents it deems necessary from the parties under this article. The parties are obliged to send the said information and documents to the Authority within the period determined by the Authority.
(8) The provisions, conditions, and fees determined by the Authority enter into force from the date of the application to the Authority by the operator requesting reconciliation, reserving the provisions in the reference access offers and Authority regulations.
(9) During the reconciliation process, the Authority takes all measures required by the public interest, including the determination of interim fees. Operators are obliged to comply with the measures taken by the Authority, including interim fees. When determining the interim fee, the Authority takes into account the previously applied fees and/or the provisions of Article 12. After the final fee is determined by the Authority, operators make settlements retroactively based on this fee.
(10) Unless subsequent Authority regulations require otherwise or otherwise agreed by the operators within the framework of the relevant legislation, the provisions, conditions, and fees determined by the Authority continue to be applied.".
The Regulation article quoted above is primarily based on the principle that the parties reach a common agreement ground (freedom of contract); it grants the parties the right to apply to the Authority to conduct reconciliation procedures if the existing dispute regarding access and interconnection continues for a certain period (maximum 2 months); it rules that the Authority, which will evaluate the said application, will decide whether to accept the reconciliation request by taking into account certain matters (obligations imposed on operators under the relevant legislation, regulations made by the Authority on the same or similar matters, etc.); and in the event of acceptance of the reconciliation application, it grants the Authority the authority to take necessary measures (including determination of interim fees) to end the dispute between the parties and finally to determine the provisions, conditions, and fees subject to the dispute in the access agreement, which will be valid until otherwise determined by the parties (or subsequent Authority regulations) within 2 months (this period may be extended by another 2 months in exceptional cases).
