Press Release No: Individual Application 40/17
19.12.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE FREEDOM OF EXPRESSION AND PRESS DUE TO FAILURE TO FIX THE DATE FOR RADIO FREQUENCY AUCTION

On 18 October 2017, the Plenary of the Constitutional Court found a violation of the freedom of expression and the freedom of press, respectively enshrined in Articles 26 and 28 of the Constitution, in the individual application lodged by Bizim FM Radyo Yayıncılığı ve Reklamcılık A.Ş. (no. 2014/11028).

The Facts

In Turkey, private radio broadcasting started in 1989, despite the constitutional and legal obstacles. Private radio broadcasting has gained a legal basis with the amendment made to Article 133 of the Constitution in 1993. Subsequently, the former (now repealed) Law no. 3984 on the Establishment of Radio and Television Enterprises and their Broadcasts was enacted in 1994, and the Law was followed by the secondary regulations. During this transitional period, then-existing radios that satisfied the criteria set by the Radio and Television Supreme Council (RTÜK) were allowed to continue broadcasting until a frequency auction was made. However, despite the imperative provisions of the above mentioned Law and Law no. 6112 on the Establishment of Radio and Television Enterprises and their Media Services which entered into force in 2011, no auction has been made by the administration until today. The current terrestrial radios in Turkey are the radios that started broadcasting before 1995 or that were granted broadcast permission with certain administrative or judicial orders after 1995. In other words, since 1995, no radio has started broadcasting upon allocation of channel and frequency through a frequency auction.

The applicant company voluntarily suspended its broadcast that was made under a license issued in 1995. Afterwards, the applicant requested from the RTÜK a (R3) licence in order to be able to make local radio broadcast. However, its request was rejected without any justification.

The applicant contested the RTUK’s decision before the Administrative Court (the court). The applicant maintained that the administration’s failure to hold a frequency auction for a long time resulted in inequality between the companies that were actually broadcasting and the companies that wanted to broadcast for the first time.

The court dismissed the case. In its decision, it pointed out that until a frequency auction and channel and frequency allocations would be made in accordance with the provisional Article 6 of the former Law no. 3984, the companies that were broadcasting on the date of entry into force of the Law would be able to continue their broadcasts, as limited to the residential areas where they had been permitted to broadcast. According to the court, as the applicant company had previously suspended its broadcasts voluntarily, the provisional Article would not be applied with respect to it. The frequency auction which would enable new broadcast applications was not held yet. Therefore, rejection of the application for a licence did not contravene the law.

Upon appeal, the 13th Chamber of the Council of State (the Chamber) quashed the judgment of the court. According to the Chamber’s judgment, while the administration that was liable to allocate, as soon as possible, the channels and frequencies by holding frequency auction, it caused the continuation of the transition period by not doing so, which would give rise to unequal practices between the pre-existing radios and the new companies that wanted to go into radio broadcasting. The Chamber also held that the rejection of applications based on an auction to be held on an unknown date violates the freedom of expression and dissemination of thought safeguarded by the Constitution, and in this regards it also violate the constitutional provision set therein that radio and television stations shall be established and operated freely.

However, the Chamber accepted the rectification request lodged by the respondent administration and upheld the judgment of the first instance court. The Chamber gave no explanation as to the reason why it reversed its previous judgment.  

The Applicant’s Allegations

Arguing that the fact that administration did not make a frequency auction since 1995 and that an expected auction’s date was indefinite, led to unequal practices between the pre-exiting radios and new companies that wanted to go into the radio broadcasting business, and thereby restricted the right to broadcast, the applicant alleged that its rights safeguarded by Articles 2, 5, 10, 26, 36 and 138 of the Constitution were violated, and in this regard, it requested retrial.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

The freedoms of expression and press are of vital importance for proper functioning of democracy. Given this vital importance of the freedoms of expression and press, the State is expected to provide the highest safeguards with regard to these freedoms. As a matter of fact, Article 28 § 3 of the Constitution imposes on the State an obligation to take the necessary measures to ensure the freedom of press and information. In addition, the phrases “subjecting broadcasts to a system of licensing” which is set forth in Article 26 § 1 and “regulatory provisions concerning the use of means to disseminate information and thoughts” set forth in Article 26 § 1 allow the State to organize the press and broadcasting and to monitor them through licencing, along with the obligation of maintaining the order in this sector and removing obstacles and to eliminate the obstacles which make it difficult or impossible to enjoy the freedoms of expression and press.

In this context, the obligation of the State to ensure pluralism in the sector of radio and television broadcasting is underlined in the reasoning of the amendment made to Article 133 of the Constitution in 1993 by setting forth that “Radio and television stations shall be established and operated freely in conformity with rules to be determined by law”. It is also stated therein that  in the case of failure to provide pluralism, there could be no mention of democracy. It is obvious that the aim of the relevant constitutional amendment and the legal arrangements in this regard is to develop the freedoms of expression and press in our country. Therefore, it cannot be said that those constitutional and legal provisions aim to make the existing transition period permanent.

The former Law no. 3984 does not contain any provision as to the date of the frequency auction to be held. As a matter of fact, the auction was not made until 2011 when the new Law came into force. As for Law no. 6112, there is an explicit provision for frequency planning and allocation, and the deadline for the frequency auction for the terrestrial radio broadcasting is set forth as 3 September 2015 therein; however, no step has been taken in this respect until today. For this reason, the broadcasting companies that will broadcast for the first time or those wishing to broadcast again as in the present application have been waiting for approximately 24 years, as a frequency auction has not been held yet.

The rejection of the applications for radio broadcasts due to the lack of a frequency auction constitutes a structural problem that adversely affects the right to broadcast, which is an important means in ensuring the transmission and dissemination of thoughts. Even if it is assumed that there existed some legal and technical difficulties with regard to licencing and regulation in the early days of the private radio broadcasting, it has not been asserted either by the administration or the courts that such an obligation would impose an unfair burden on the State. Nor any other reason has been submitted to justify the failure of frequency allocation. The current situation leads to major problems in many respects.

First, continuation of the transition period that started running in 1995 has led to unequal practices between the broadcasting companies that has been broadcasting from the beginning of this period and the companies that want to broadcast. This situation is still ongoing.

Second, the date when a radio frequency will be allocated to the applicant for broadcasting is indefinite in terms of legislation and practice.

Third, the administration and the courts have failed to provide adequate safeguards against the arbitrariness arisen due to non-enforcement of the laws with respect to the applicant and the others who want to make radio broadcast.

Fourth, the current situation may also lead to problems in terms of competition in the radio broadcasting sector. It is clear that the lack of measures to maintain pluralism in the national media for a very long period of 24 years has prejudiced the freedoms of expression and press that are of vital importance in a democratic society.

All these points reveal that the State has failed to fulfil its obligation to carry out the necessary legal and administrative regulations in order to ensure effective pluralism in the media and to secure the freedom of press and information, besides its obligation to enforce the existing legislation effectively.

In the event that the territorial radio broadcasting is not organized and the frequencies in this respect are not allocated on an equitable basis in spite of the constitutional rules and the laws, the available structural problem will continue, leading to continuous violations of the freedoms of expression and press safeguarded by Articles 26 and 28 of the Constitution.

Consequently, the Constitutional Court found a violation of the freedoms of expression and press safeguarded by Articles 26 § 1 and 28 § 1 and 3 of the Constitution, respectively. 

In addition, the Constitutional Court held that the judgment be sent to the RTÜK — the relevant public institution— in order to eliminate the violation as regards the structural problem and its consequences.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2015
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