Problems and Solutions for OTT applications in Turkey

Dr. Yavuz Selim Sarıibrahimoğlu

OTT can generally be defined as “the services provided for the current electronic communication infrastructures, independent of service operators, without a need to make an additional agreement with the operator and/or to use any additional technical devices and is generally free of charge and/or without being subjected to the tax arrangements, inspections and rules of the country where the service is provided.” Various applications including communication services (free video/audio calls, free normal or multimedia messages and tax-free international phone calls), films, music, books, newspapers, magazine subscriptions, games and others are considered the most commonly used OTT services nowadays.

The authorization, regulation and inspection activities related to electronic communication services in our country are carried out by the Ministry of Transportation and the Information Technologies and Communication Agency. The competitive compliance of the related activities being carried out is inspected by the Competition Authority. Besides the fact that there is no regulation on OTT services in our country yet, the technical, cognitive and legal infrastructure, staff and perspective of the institutions authorized in matters covering OTT services are extremely unsatisfactory in making the necessary examinations and regulations and taking timely precautions. Considering most of the firms providing OTT services provide those services and most of the consumers use those services, it is of great importance to remove the deficiencies in question in terms of regulating the market correctly and properly in the near future.

The Competition Authority, in its decisions concerning the telecommunications sector, assesses matters such as the abuse of the current situation or unfair competition on the basis of economic data like market share etc. only on paper; however, as they do not have experts with the technical information which can follow the foreseeable technological developments closely, it will not able to assess the essence of the matter in a sound way from the point of information technologies. Consequently, a supreme board to be formed by experts in the field of technology who can foresee the technological changes and who are to be elected from the Competition Authority and the Information and Communication Services Authority to supersede both authorities can intervene necessarily and timely by making faster and more correct decisions in such situations.

This board must be formed by three scientists who have put their signatures under significant discoveries and R&D activities, whose competence and knowledge is indisputable according to the objective criterion and who know the law of change and technological developments, as well as a legal expert and an economist who know the capital markets and the functioning of the stock exchange market. The existence of three scientists who have developed new technologies in the field of R&D on this board is of great importance.

Nowadays, the law is being criticized for its inability to keep up with new technology. However, the main problem is not the law’s inability to keep up with technology but regulatory institutions lagging behind the creation of laws to change and keep up with developing and foreseeable technology. It is clear that our country is in the position of being a consumer, not a producer, with respect to developing information technologies. Technical experts who can comprehend developing new technologies and their functions do not exist in the regulatory institutions and many problems are caused by this deficiency.
For this reason, in terms of keeping up with technology, it is essential persons specializing in R&D exist on this to-be-formed board. Also, this new institution must be given the full power to make a final decision on illegalities in the field of information technologies. As it is known, when a dispute caused by unfair competition in the telecommunications sector becomes a matter of complaint before the Competition Authority, it can be resolved only after months and it can take years for a final decision when this resolution is examined by the administrative jurisdiction. Such delayed justice becomes late in creating the law of change and has difficulty in creating the fair and equal competition conditions in the market. However, in a sector providing services to billions of consumers all over the world and having a transaction volume of billions of dollars, the decisions must be made as fast as possible and the arrangements must be made in the right place and at the right time so that the law can be a remedy to these problems in real terms.