Reconciliation With Information Communications And Technologies Authority - Telecoms, Mobile & Cable Communications

The Regulation on Reconciliation Procedures and Principles on Receivables and Debts of Information Communications and Technologies Authority ("Regulation") was published on the Official Gazette dated March 26, 2021, and entered into force on the same day.¹

I. Scope of the Regulation

The Regulation sets out the reconciliation procedures and principles with respect to debts and receivables of the Information Communications and Technologies Authority ("ICTA"), including but not limited to receivables and administrative fines arising out of various statutes, namely the Law on Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts ("Law No. 5651"), the Electronic Communication Law, the Electronic Signature Law, the Law on Postal Services and the Turkish Commercial Code.

The Regulation specifies the rules for the authorities and duties of the reconciliation commission, which consists of five (5) members authorized to represent ICTA in reconciliation meetings.

As per the Provisional Article 1 of the Regulation, the reconciliation applications for ICTA receivables which have become due between December 5, 2017 (effective date of Article 5/14 of the Law No. 2813) and March 26, 2021 and remain totally or partially unpaid, should be made at the latest within three (3) months and the process completed within eight (8) months by ICTA. The Regulation does not explicitly indicate the beginning date of this "3 month" period, however, this beginning date will likely be interpreted as the publication date of the Regulation, which is March 26, 2021. Therefore, the last day for the reconciliation application for these due receivables would be June 25, 2021.

II. Principles

Regulation sets forth the following principles to be applied to the reconciliation processes.

-Consideration and protection of public interest,

-Resolution of disputes with reconciliation prior to and during the legal action and execution processes,

-Resolution of disputes in a fair manner,

-Providing relevant parties equal opportunity to apply for reconciliation, without discrimination,

-Save for when required otherwise due to objective reasons, resolution of similar reconciliation requests with same criteria, in a fair and quick manner,

-Protection of confidentiality of parties' data during every phase of reconciliation.

Depending on the dispute, the authority to render the final decision on the reconciliation process would be the regional manager, the President or the Information Communications and Technologies Board ("ICTB").

III. Reconciliation for Judicial Disputes

Reconciliation

As per Article 5 of the Regulation, ICTA may invite the counter party to reconciliation prior to and during legal action and execution phases, or accept their requests of reconciliation.

The reconciliation shall cover those agreements indicated in the reconciliation minutes, and reconciliation might be made on the entire dispute or only certain parts of it.

If deemed to be in the public interest for legal or factual reasons, ICTA may partially or completely waive the principal receivable and its derivatives; or agree on postponement, installment or deduction of the payments.

Procedure

ICTA might invite the parties to reconciliation upon the approval of the President of ICTB. The subject of the dispute will be clearly indicated in the invitation. Save for events of force majeure or just reasons that may be acceptable by the authority, the invitation should be responded within thirty (30) days, otherwise the invitation would be deemed rejected. Upon request, an additional thirty (30) days might be granted for response. On the other hand, the relevant party might also invite ICTA for reconciliation by indicating the subject of the dispute. If it is deemed appropriate by the authorized authority, the invitation should be responded to within thirty (30) days.

If the invitation is accepted, a response which indicates the acceptance of the invite should be sent to ICTA. This response should include the identity and contact information of the persons who are authorized to participate in the reconciliation meetings and decide on resolution of the dispute, along with their authorization documents and signature circular/declarations.

Upon the acceptance of the invitation, a reconciliation commission will be set up in ICTA. A reconciliation meeting will be organized with the counterparty representatives, in line with the date and program to be determined by ICTA. If the dispute is not resolved in the first meeting, additional meetings may be organized, bearing in mind principles of procedural (judicial) economy.

Following the meetings, the minutes regarding the outcome of the reconciliation meeting, and the report to be drafted by the reconciliation commission shall be submitted to the relevant authority. The reconciliation process is completed upon the execution/signing of the authority`s reconciliation decision, by the parties` authorized representatives and the President of ICTB.

For judicial disputes, the reconciliation process should be concluded latest within one hundred and twenty (120) days. This term might be extended up to one hundred and eighty (180) days with parties' agreement.

IV. Reconciliation for Administrative Disputes

Reconciliation

As per Article 7 of the Regulation, reconciliation requests can be made with respect to administrative fines which were not paid in whole or in part. Reconciliation might cover the entirety or a certain part of the dispute. If deemed to be in the public interest for legal or factual reasons, ICTA may partially or completely waive the principal receivable and its derivatives; or agree on postponement, installment or deduction of the payments.

Procedure

ICTA may invite the relevant party to reconciliation upon the approval of the President of ICTB. The subject of the dispute will be clearly indicated in the invite. Save for events of force majeure or just reasons that may be acceptable by the authority, the invitation should be responded within seven (7) days, and otherwise the invitation would be deemed rejected. On the other hand, the relevant party may also invite ICTA for reconciliation by indicating the subject of the dispute. The invitation should be responded within seven (7) days.

Reconciliation process should be concluded latest within thirty (30) days. This term might be extended up to forty five (45) days for the cases where ICTB's decision is required.

Besides the foregoing, the Regulation also sets forth the procedure to form the reconciliation commission, its authorities, and the main principles of the reconciliation meetings. According to Article 12 of the Regulation, if a lawsuit is initiated regarding a matter of dispute that was discussed during the reconciliation meeting, the reconciliation application, reconciliation invitation, opinions of the parties, documents which are prepared only for reconciliation cannot be submitted as evidence in such lawsuit. The person(s) who attended the reconciliation meetings cannot be called as witnesses in such lawsuit. Having said this, as per Article 14, the matters settled through the reconciliation process and set out in the reconciliation decision are final; they cannot be made subject to a complaint or appeal.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2021. A link to the full Legal Insight Quarterly may be found here

Footnote

1 See https://www.resmigazete.gov.tr/eskiler/2021/03/20210326-2.htm (Last accessed on April 28, 2021).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.