In Texas, a state district judge rejected a request by Nueces County District Attorney Mark Gonzalez to cancel a death warrant for a man scheduled to be executed on October 5. Gonzales sought to cancel the execution of John Ramirez because of his “firm belief that the death penalty is unethical and should be not be imposed on Mr. [John Henry] Ramirez or any other person.” Gonzales says one of his employees mistakenly asked for the court to set the execution date. In a DPF webinar, “D.A.s and the Death Penalty,” that aired earlier this month, Gonzales explained how and why he became an abolitionist. His stance hasn’t hurt him politically — he was re-elected in 2020. Gonzales and Ramirez’s attorney plan to appeal the judge’s ruling to the state Court of Criminal Appeals, the Texas Tribune reports.
Also in Texas, the U.S. Supreme Court essentially allowed the state Court of Criminal Appeals to defy its own ruling in 2020 in the death penalty case of Terence Andrus. Andrus was sentenced to death in 2008 after being convicted of two killings during a carjacking. Andrus suffered severe abuse as a child and spent years in solitary confinement in juvenile detention, all mitigating factors that his lawyer never presented during his trial. In 2020, the Court sent the case back to the CCA to review claims of ineffective counsel, but without hearing oral argument, the CCA ruled against Andrus. The case returned to the Supreme Court, which let the death sentence stand. The Court’s failure to act “is lamentable,” Justice Sonia Sotomayor wrote in her dissent.
In Pennsylvania, the youngest person ever executed in the state was exonerated 91 years after he was wrongfully convicted and executed at the age of 16. The Philadelphia Inquirer reports that Alexander McClay Williams, a Black teenager, was convicted by an all-white jury of the stabbing death of a matron at the Glen Mills School for Boys in 1931. This month, in the same courtroom where he was convicted, and with the assistance of the great-grandson of the lawyer who represented Williams at his trial, Williams was declared innocent, the victim of prosecutorial misconduct, coerced confession, and racism.
Buffalo shooting suspect 18-year-old Payton Gendron
By Samina Akhter*
Most Bangladeshi and India media reports say that the West Bengal Chief Minister Mamata Banerjee has received 600 kg of mangoes from Bangladesh Prime Minister Sheikh Hasina as part of her “mango-hilsa diplomacy.”
Hasina also delivered mangoes to President Ram Nath Kovind and Prime Minister Narendra Modi this month, according to the Bangladesh Deputy High Commission in India. In all, 1,200 kg of Amrapali mangoes were delivered to the residences of the President and the Prime Minister of India.
According to a Bangladesh’s deputy high commission official in Kolkata, a few more chief ministers in the eastern region will likely receive similar gifts.
Last year, not only President Kovind and Prime Minister Modi, but also the chief ministers of West Bengal, Tripura, and Assam also received mangoes from Prime Minister Hasina. Hasina delivered mangoes from Rajshahi, including kinds like Golapkhas and Amrapali, as it is the peak season for the delectable fruit in Bangladesh.
The mangoes were delivered as a gift to the respective diplomatic channels by the Bangladesh High Commission in New Delhi. This was meant to further strengthen the diplomatic relations and friendship between the two countries.The mango diplomacy initiated by Sheikh Hasina began last year.
A day before the meeting of the Joint Working Group (JCC) between Bangladesh and India last week, Prime Minister Sheikh Hasina sent mangoes. Foreign Minister attended the JCC meeting. Abdul Momen completed his visit successfully. The JCC meeting was held in Delhi on June 19. It discussed the overall issues of bilateral relations, including Prime Minister Hasina’s upcoming visit to India.
Incidentally, Prime Minister Modi and President Kobind visited Bangladesh last year to attend the 50th anniversary of Bangladesh’s independence and the birth centenary of Sheikh Mujibur Rahman.
Modi recently invited Prime Minister Hasina to visit India through External Affairs Minister S Jayashankar. According to media reports, On September 6 and 7, Prime Minister Hasina will travel to India to meet with her Indian counterpart, Narendra Modi. The schedule has been set by Delhi and Dhaka, and the Prime Ministers have verbally approved it.
According to a representative of the foreign ministry, the two nations will hold a Joint Rivers Commission (JRC) meeting before the PM-level summit in New Delhi. The JRC has not met at the ministerial level for the past ten years, despite the fact that the sharing of water from transboundary rivers is a major concern for the two nations.
PM Hasina’s visit is vital for the two nations’ bilateral ties, which seem to have improved over the past 15 years, particularly in the light of Bangladesh’s role as India’s gateway to its northeastern states. India has also praised Bangladesh’s involvement for upholding a zero-tolerance attitude toward the insurgents who had previously caused unrest in the northeastern states of India.
India and Bangladesh are attempting to improve regional collaboration, particularly in connecting South and Southeast Asia, in the wake of the Covid-19 outbreak and the Russia-Ukraine war, which severely interrupted the global supply chain.
In order to ensure early preparation for any natural catastrophes like floods and storms, Bangladesh has also requested India’s assistance in managing the transboundary river basin as a whole and in exchanging weather data.
Since the Sylhet region is experiencing severe flooding mostly as a result of high rainfall in the Indian hill states of Meghalaya and Assam, the issue has become more crucial than ever.
PM Hasina has made an admirable gesture. Both last year and this year, we had a good crop of mangoes. They are more than welcome if they assist to deepen bonds and improve the harmony between the two nations. It should assist in resolving any bilateral difficulties.
The Teesta water-sharing agreement is one of the many persistent disagreements between Bangladesh and India. Since a few years ago, there has been talk over the Teesta water-sharing deal between Bangladesh and India.
However, there is no longer a Teesta problem. The sharing of Teesta River water became the most crucial topic of dispute following the Ganges Treaty in 1996. At the two nations’ ministerial-level conference in August 1983, the Teesta water-sharing issue between Bangladesh and India was first raised.
Manmohan Singh, who was India’s prime minister at the time, traveled to Dhaka in September 2011. A Teesta water-sharing deal was scheduled to be inked at that time. The temporary agreement had a 15-year term. The agreement establishes Bangladesh’s entitlement to 37.5% of the Teesta’s water and India’s right to 42.5% of it. However, Mamata Banerjee, the chief minister of West Bengal, did not agree to the treaty, and it was not finalized.
Prime Minister Hasina traveled to India later in 2014. The Teesta Treaty was anticipated to be signed following this trip to India. The PM met with Mamata Banerjee, the chief minister of West Bengal, during the trip. The West Bengal Chief Minister insisted that the primary factor influencing her disapproval was her unwillingness to provide water to Bangladesh at the expense of North Bengal’s residents.
View is strong in Dhaka that refusing to sign Teesta river accord is denigration of good neighbourly relations between India and Bangladesh
Even in 2015, Prime Minister Modi traveled to Dhaka alongside West Bengal Chief Minister Mamata Banerjee. Yet, nothing came of it. There are 54 rivers that cross the boundary between Bangladesh and India. In 43 of these, India controls the majority of the seas, which is considered essentially unjust to by its neighbours.
In essence, the view is strong in Dhaka, that refusing to sign the Teesta river accord is a denigration of the good neighbourly relations between India and Bangladesh. India had to keep in mind that Bangladesh is a reliable ally in the area. It is frequently claimed that the bilateral relations between Bangladesh and India are at their peak right now.
As Bangladesh PM has been practicing and showing her liberal neighbourhood mindset towards India, particularly through ‘Hilsa-Mango’ diplomacy, it is India’s turn how. Much, however, is said to depend on the stand taken by Mamata Banerjee.
India’s Central government maintains the narrative that Mamata Banerjee’s continuous opposition has been the key obstacle in signing the Teesta deal. So, there is the subtle hint that only Mamata could be a welcome relief to break the stalemate. She is quoted as stating, “I love Bangladesh but Bengal is my priority.”
Obviously, Mamata must be understood. But Bangladeshi people, too, deserve the right to the river. Not signing the treaty is belittling the neighbourly spirit between India and Bangladesh — a crucial factor in collaborative cooperation between the two countries.
Making one’s life simpler shouldn’t come at the expense of others. As Bangladesh PM is set to visit to India this year, one has to see what signal Mamata Banerjee gives to the Centre to sign the long-pending treaty – after all, it is a long-pending promise of India to Bangladesh.
A successful resolution to the Teesta issue will boost bilateral ties between India and Bangladesh while also helping Bangladesh’s economy. India will gain a lot from the Teesta Treaty. If this bilateral agreement is implemented, it will be able to satisfy all Bangladeshi stakeholders. India will undoubtedly be able to fortify its position as Bangladesh’s staunch ally and develop a solid diplomatic and economic alliance.
The bondage between the two Bengalis from two countries would be further strengthened if Mamata Banerjee provides positive response to Sheikh Hasina’s ‘Mango Diplomacy’.
*Dhaka-based women and human rights activist
UN human rights experts* today denounced a shocking and dangerous decision by the Supreme Court of the United States to strike down a nearly fifty-year-old legal precedent that has protected women’s right to choose to have an abortion, describing it as a serious regression of an existing right that will jeopardize women’s health and lives.
Today, with the stroke of a pen and without sound legal reasoning, the Supreme Court of the United States has stripped women, girls and all persons capable of becoming pregnant in the country, of existing legal protections that are necessary to ensure their ability to determine the course of their lives and to live with dignity. The revocation of abortion rights established by Roe signals an expansion of women’s “missing rights” in the United States, as already stressed by the Working Group on discrimination against women and girls in the context of its official mission in the United States.
The Supreme Court has completely disregarded the United States’ binding legal obligations under international human rights law, including those stemming from its ratification of the International Covenant on Civil and Political Rights, which protects a woman’s right to life from the harmful impact of abortion restrictions. “The Supreme Court was duly reminded of this binding obligation and others in a detailed amicus brief submitted by international independent human rights experts, which was completely disregarded by the Court in its decision.”
Legal protections for abortion access and abortion rights have been established under international law as a matter of ensuring women’s ability to enjoy their legally protected human rights to life, health, equality and non-discrimination, privacy, freedom from torture, cruel, inhuman, and degrading treatment and to ensure their freedom from gender-based violence.
The right of a woman to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy, concerning intimate matters of physical and psychological integrity. Experts noted that access to legal abortion is essential health care and pivotal to women’s enjoyment of a full spectrum of their human rights. The right to make autonomous decisions about the termination of a pregnancy must be supported by equitable access to dignified care, trained healthcare workers and accurate information.
In recent decades many countries have liberalized their abortion laws for reasons of women’s human rights, including equality, health, and safety. This positive trend reflects the understanding that personhood is not established until birth. Those who believe that the foetus is already a human person with rights from the moment of conception are entitled to their personal beliefs, but a democratic State cannot impose their beliefs on others through the legal system. The true parameters of contestation are then between the rights of a born person who is the subject and repository of international human rights and any societal interest, valid as it may be, that there may exist in the process of gestation of a possible future person. The limits of intervention to promote any such societal interest must stop short of violating the human rights of the pregnant woman in whose body the gestation is to take place.
Countries where access to abortion is decriminalized or legal and contraception is widely available have the lowest rates of maternal mortality. According to the World Health Organization, abortion is a common procedure with 6 out of 10 unintended pregnancies ending in induced abortion globally. An estimated 45% of these abortions are unsafe. Restrictive laws do not reduce the individual need for abortion but are likely to increase the number of women and girls seeking clandestine and unsafe abortions. They fuel abortion stigma, and lead to the abuse of women in need of post abortion care and their incarceration. The stigma also affects healthcare workers who face the threat of violence in the execution of their expertise.
In countries with legal restrictions or pervasive barriers, safe termination of pregnancy becomes a privilege of the rich, while women with limited resources have little choice but to resort to unsafe providers and practices. This court ruling enables structural discrimination, which is already widely prevalent in the United States, where socio-economically disadvantaged women of color notably Black and indigenous women and others in situations of vulnerability, such as migrant women, those living with disabilities and victims of sexual violence and sex trafficking, face additional barriers to reproductive health care services. Further, the criminalization of abortion and the denial and delay of safe abortion and post-abortion care may amount to torture, or cruel, inhuman or degrading treatment. Laws, judgments or public policies that restrict the right to personal liberty by criminalizing conduct related to the consequences of a lack of access to and enjoyment of the highest attainable standard of health, or of obstetric violence, or which criminalize the exercise of women’s reproductive rights, must be considered to be prima facie discriminatory and may lead to arbitrary detention.
Experts expressed concern about the patchwork of abortion restrictions that will be created in the United States with the revocation of the right to choose abortion previously protected under Roe v. Wade, because of the existing trigger bans and new legislation, either recently or soon to be introduced by state legislatures. This is translated into lack of clarity about the legal parameters of abortion which will now vary by geographic location and creates the risk of prosecution, faced by women and abortion providers, including those prosecutions triggered by private citizens. The intimidation and stigma that will be faced by pregnant women and girls in need of safe abortion services and abortion providers is poised to create a nightmare scenario for those faced with the uncertainty and trauma of an unplanned pregnancy. We are deeply concerned about the plight of women who will be forced to leave their homes and travel to other states to terminate an unwanted pregnancy safely or face the prospect of a forced pregnancy and motherhood. It is unclear whether certain states may even restrict their ability to travel to seek abortion and private businesses may be penalized for assisting pregnant women who need abortions. The level of legal uncertainty arising from the dismantling of a legal protection that has withstood several legal challenges over a period of nearly fifty years is deeply truly terrifying.
The decision whether to continue a pregnancy or terminate it, must fundamentally and primarily be a woman’s decision, as it will shape her whole future personal life as well as family life. These are decisions that have a far-reaching impact on women’s education, career, economic security, safety, and ability to participate in public life. Experts noted that “access to legal abortion is essential health care and pivotal to women’s enjoyment of a full spectrum of human rights and must be taken out of the realm of partisan politics. Now that the protections under Roe v. Wade have been taken away, new measures must be urgently introduced to mitigate the harm that many pregnant women are likely to experience and to create the conditions and legal frameworks needed to ensure their safety.”
The right to access safe abortion services must be codified in law in accordance with human rights standards that require ensuring the availability, accessibility, affordability, acceptability and quality of abortion services, free and informed decision-making, adequate financial investment, based on respect for the right to life of women. All branches of government, office bearers and political actors are duty bound to fulfill these obligations. Those serving in a legislative, executive or a judicial capacity equally carry these obligations and must not be complicit in violating human rights. Sufficient recognition to the right to health should be given in the national political and legal system to bring a human rights-based approach to their national public health strategy.
We call upon the Biden administration to take all necessary measures to mitigate the potential consequences of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, such as through executive orders to protect access to abortion, ensure funding for states for the provision of safe abortion services, and prevent restrictions on measures aimed at limiting the movement of abortion seekers and abortion providers across state lines. It is within the power of State legislature to protect abortion rights and access and the State of New York is a leading example. The Federal Government should strongly encourage other states to follow suit and provide Federal funds to states that are willing to ensure greater access to abortion services through new legislative measures and, in this time of crisis, allocate funds to cover the expenses of women who will have to travel to other states to access abortion, for legal aid and relocation expenses to avoid prosecution in their state of origin. Measures protecting private businesses that support women’s access to abortion from being attacked and penalized must be introduced and the right of freedom of expression and peaceful assembly of individuals advocating for abortion access must be fully protected.
The revocation of abortion rights established by Roe signals is a major retrogression that will further entrench structural discrimination and violence against women and girls and all persons capable of becoming pregnant in the country.
What has happened in the United States today is a profound setback for the rule of law and for gender equality. The excessive use of the legislative process, executive power, and judicial authority over the years to restrict and criminalize abortion rather than to expand it and ensure equitable access to safe abortion services, signals a deeply troubling erosion of democratic values and process.
He kidnapped, raped and killed mentally challenged minor girl
New Delhi: The Supreme Court on Friday sent to gallows a man for kidnapping, raping, and killing a seven-and-half-year-old mentally and physically challenged girl in 2013, saying the crime was of the nature of “extreme depravity which shocks the conscience” and left “no other option but to confirm the death sentence”.
Condemned convict Manoj Pratap Singh, then 28 years of age, had kidnapped the physically and mentally challenged minor girl in front of her parents from their fruit and vegetable vending cart on January 17, 2013, brutally raped her at a secluded place before killing her by smashing the head in Rajsamand district of Rajasthan.
“We may sum up thus: In the case of the present nature, the crime had been of extreme depravity, which shocks the conscience, particularly looking to the target (a seven-and-a-half-year old mentally and physically challenged girl) and then, looking to the manner of committing murder, where the hapless victim’s head was literally smashed, resulting in multiple injuries including a fracture of frontal bone…,” said a bench of Justices A. M. Khanwilkar, Dinesh Maheshwari and C. T. Ravikumar while upholding the Rajasthan High Court’ verdict confirming the death penalty.
The bench rejected the contention that in the case, hinging on circumstantial evidence, the death penalty should not be awarded saying that if the conviction can be sustained on such proof then the extreme penalty can also be imposed depending on the nature of the offence.
“In the present case, where all the elements surrounding the offence as also all the elements surrounding the offender cut across the balance sheet of aggravating and mitigating circumstances, we are clearly of the view that there is absolutely no reason to commute the sentence of death to any other sentence of lesser degree. Even the alternative of awarding the sentence of imprisonment for the whole of the natural life with no remission does not appear justified in view of the nature of crimes committed by the appellant and looking to his incorrigible conduct,” Justice Maheshwari, writing the verdict, said.
The top court, in its 129-page judgment, concurred with the findings of the courts below that the offence fell under the rarest of rare categories warranting the imposition of the death penalty on the convict, a native of Maharajganj district in Uttar Pradesh.
It examined the aggravating and mitigating circumstances besides conducting the crime and criminal tests on the convict before awarding the death penalty for the barbaric offence.
“The heinous nature of the crime, like that of the present one, in brutal rape and killing of a mentally and physically challenged girl, who was only about seven-and-a-half-year-old, definitely carries excessively aggravating circumstances, particularly when the manner of commission of both the major offences of rape and murder shows the depravity of highest order and would ex facie shock anyone’s conscience,” it said while rejecting the appeal of the convict.
The horrific manner of killing the victim, by causing ghastly head injuries had been nothing less than beastly conduct of the appellant, it said.
Refusing to show any leniency, the bench said the mere selection of the target victim by the accused “shocks conscience”.
“This is apart from the fact that the innocent victim was kidnapped on a stolen motorcycle by misusing the trust gained by the offer of confectionary items and also, apart from the fact that she was brutally and inhumanly raped. Taking up the test parameters pertaining to the criminal (i.e., the appellant), of course, he has a family with a wife and minor daughter and aged father, and the crime was committed when he was only 28 years of age,” it said.
This article details the key aspects of the Turkish merger control regime. It discusses recent developments and cases in respect to merger control in Turkey, including two important recent decisions.
- Turkish merger control regulations
- Thresholds, notification and investigation
- Recent developments and statistical data on merger control
Referenced in this article
- Turkish Competition Authority
- Law No. 4054 on Protection of Competition
- Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board
- Communiqué No. 2022/2 on the Amendment of Communiqué No. 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board
- Communiqué No. 2017/2 Amending Communiqué No. 2010/4 on Mergers and Acquisitions Requiring Approval of the Board
- Decision No. 21-30/395-199
- Decision No. 20-37/523-231
The national competition agency for enforcing merger control rules is the Turkish Competition Authority (the Competition Authority), a legal entity with administrative and financial autonomy. The Competition Authority comprises the Competition Board, the presidency and service departments.
As the competent decision-making body of the Competition Authority, the Competition Board is responsible for, among other things, reviewing and resolving merger and acquisition notifications. It comprises seven members and is seated in Ankara.
Turkish merger control regulation
The applicable legislation on merger control is Law No. 4054 on Protection of Competition (Law No. 4054) and Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board (Communiqué No. 2010/4). On 4 March 2022, the Competition Authority published Communiqué No. 2022/2 on the Amendment of Communiqué No. 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board (Communiqué No. 2022/2). Communiqué No. 2022/2 introduces certain new regulations concerning the Turkish merger control regime, which will fundamentally affect the notifiabiliy analysis of merger transactions and the merger control notifications submitted to the Competition Authority.
Article 7 of Law No. 4054 authorises the Competition Board to regulate, through communiqués, the mergers and acquisitions that must be notified to be valid. Communiqué No. 2010/4 is the primary instrument in assessing merger cases. It sets forth the types of mergers and acquisitions that are subject to the Competition Board’s review and approval.
With a continued interest in harmonising Turkish competition law with EU competition law, the Competition Authority has published various guidelines on merger control that are in line with the EU antitrust and merger control rules.
- The Guidelines on Market Definition are closely modelled on the Commission Notice on the definition of relevant market for the purposes of Community competition law (97/C 372/03).
- The Guidelines on Undertakings Concerned, Turnover and Ancillary Restrictions in Mergers and Acquisitions contain certain topics and explanations about the concepts of undertakings concerned, turnover calculations and ancillary restraints, and are closely modelled on Council Regulation (EC) No. 139/2004 on the control of concentrations between undertakings.
- The Guidelines on Cases Considered as Mergers and Acquisitions and the Concept of Control, the Guidelines on the Assessment of Horizontal Mergers and Acquisitions and the Guidelines on the Assessment of Non-Horizontal Mergers and Acquisitions were published in 2013.
- The Guidelines on Remedies Acceptable in Mergers and Acquisitions provide explanations on the possible remedies.
Types of transactions
Communiqué No. 2010/4 defines the scope of the notifiable transactions in article 5 as:
- a merger of two or more undertakings; or
- the acquisition of direct or indirect control over all or part of one or more undertakings by one or more undertakings or persons, who currently control at least one undertaking, through:
- the purchase of assets or a part or all of its shares;
- an agreement; or
- other instruments.
Turkey is a jurisdiction with a pre-merger notification and approval requirement, much like the EU regime. Concentrations that result in a change of control on a lasting basis are subject to the Competition Board’s approval, provided they exceed the applicable thresholds. ‘Control’ is defined as the right to exercise decisive influence over the day-to-day management or the long-term strategic business decisions of a company and can be exercised de jure or de facto.
Acquisition of a minority shareholding can constitute a notifiable merger if it leads to a change in the control structure of the target entity on a lasting basis. Joint ventures that emerge as independent economic entities possessing assets and labour to achieve their objectives and that do not aim at or effectively result in the restriction of competition among the parties, or between the parties and the joint venture itself, are subject to notification to, and approval of, the Competition Board. In accordance with article 13 of Communiqué No. 2010/4, cooperative joint ventures are also subject to a merger control notification and analysis as well as an individual exemption analysis, if warranted.
Market dominance and significant impediment of effective competition
The Turkish merger control provisions rely on the significant impediment of effective competition (SIEC) test to ascertain whether a merger may be cleared. Pursuant to article 7 of Law No. 4054 and article 13 of Communiqué No. 2010/4, mergers and acquisitions that do not create or strengthen a dominant position and that do not significantly impede effective competition in a relevant product market within the whole or part of Turkey shall be cleared by the Competition Board.
Article 3 of Law No. 4054 defines ‘dominant position’ as ‘any position enjoyed in a certain market by one or more undertakings by virtue of which those undertakings have the power to act independently from their competitors and purchasers in determining economic parameters such as the amount of production, distribution, price and supply’.
With the SIEC test introduced by the amendment law that was passed through Parliament and entered into force on 24 June 2020, the Competition Board is able to prohibit not only transactions that may result in creating a dominant position or strengthening an existing dominant position but also those that may significantly impede effective competition.
The Competition Board’s approval decision will be deemed to also cover the directly related and necessary extent of restraints in competition brought by the concentration (eg, non-competition, non-solicitation and confidentiality). This will allow parties to engage in self-assessment, and the Competition Board will no longer have to devote a separate part of its decision to the ancillary status of all restraints brought with the transaction. Non-competition issues are, in principle, not taken into account.
Communiqué No. 2022/2 introduced threshold exemptions for undertakings active in certain markets and sectors and increased the applicable turnover thresholds for the concentrations that require mandatory merger control filing before the Competition Authority.
As per Communiqué No. 2022/2, if a transaction is closed (ie, the concentration is realised) as of or after 4 May 2022, the transaction will be required to be notified in Turkey if one of the following increased turnover thresholds is met (all currency conversions are based on the Turkish Central Bank’s applicable average buying exchange rates for the financial year 2021):
- the aggregate Turkish turnover of the transaction parties exceeding 750 million lira and the Turkish turnover of at least two of the transaction parties each exceeding 250 million lira;
- the Turkish turnover of the transferred assets or businesses in acquisitions exceeding 250 million lira and the worldwide turnover of at least one of the other parties to the transaction exceeds 3 billion lira; or
- the Turkish turnover of any of the parties in mergers exceeding 250 million lira and the worldwide turnover of at least one of the other parties to the transaction exceeds 3 billion lira.
Pursuant to Communiqué No. 2022/2, the ‘250 million lira Turkish turnover thresholds’ mentioned above will not be sought for the acquired undertakings active in or assets related to the fields of digital platforms, software or gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals and health technologies, if:
- they operate in the Turkish geographical market;
- they conduct research and development activities in the Turkish geographical market; or
- they provide services to Turkish users.
The new regulation does not seek the existence of an ‘affected market’ in assessing whether a transaction triggers a notification requirement, and if a concentration exceeds one of the alternative jurisdictional thresholds the concentration will automatically be subject to the approval of the Competition Board.
The implementing regulations provide for important exemptions and special rules.
- Article 19 of Banking Law No. 5411 provides an exception from the application of merger control rules for mergers and acquisitions of banks. The exemption is subject to the condition that the market share of the total assets of the relevant banks does not exceed 20 per cent.
- Mandatory acquisitions by public institutions as a result of financial distress, concordat, liquidation, etc, do not require a pre-merger notification.
- Intra-corporate transactions are not notifiable.
- Acquisitions by inheritance are not subject to merger control.
- Acquisitions made by financial securities companies solely for investment purposes do not require a notification, subject to the condition that the securities company does not exercise control over the target entity in a manner that influences its competitive behaviour.
- Two or more transactions carried out within three years between the same persons or parties, or within the same relevant product market by the same undertaking, are deemed a single transaction for turnover calculation purposes following the amendments brought by Communiqué No. 2017/2, Amending Communiqué No. 2010/4 on Mergers and Acquisitions Requiring Approval of the Board (Communiqué No. 2017/2). If the transactions exceed the notification thresholds individually or cumulatively, all the transactions must be notified, regardless of whether the transactions concerned are related to the same market or sector or whether they were previously notified. The main goal of this regulation is to prevent the conclusion of important mergers or acquisitions without authorisation through the compartmentalisation of mergers and acquisitions originally subject to authorisation.
Another exception pertains to the Turkish Wealth Fund, which was incorporated as a national wealth and investment fund company with Law No. 6741. Transactions performed by the Turkish Wealth Fund and companies established by the Turkish Wealth Fund are not subject to merger control rules. There are also specific methods of turnover calculation for certain sectors, which apply to banks, special financial institutions, leasing companies, factoring companies, securities agents and insurance companies. Communiqué No. 2022/2 also updates the rules that apply to the calculation of turnover of the financial institutions in accordance with the recent changes on the financial regulations. The recent updates of article 9 of Communiqué No. 2010/4 are as follows:
- for the calculation of financial institutions’ turnovers, Communiqué No. 2022/2 aligns the wordings and terms in view of the applicable banking and financial regulations – it excludes the term ‘participation banks’ and refers to the term ‘banks’ in general, which covers all legal forms of banks; and
- Communiqué No. 2022/2 updates the names and references of the relevant regulations issued by the Banking Regulatory and Supervisory Agency and the Capital Markets Board referred to in article 9 of Communiqué No. 2010/4.
There is no specific deadline for making a notification in Turkey. There is, however, a suspension requirement (ie, a mandatory waiting period): a notifiable transaction (regardless of whether it is problematic under the applicable dominance test) is invalid, with all the ensuing legal consequences, unless the Competition Authority approves it. It is, therefore, advisable, under normal circumstances, to file the transaction at least 60 calendar days before the projected closing.
The notification is deemed filed when the Competition Authority receives it in its complete form. If the information provided to the Competition Board is incorrect or incomplete, the notification is deemed filed only on the date when the information is completed upon the Competition Board’s subsequent request for further data. The notification is submitted in Turkish. Transaction parties are required to provide sworn Turkish translations of the final executed or current version of the transaction agreement.
In principle, under the merger control regime, a filing can be made by either of the parties to the transaction or jointly. In the case of a filing by one of the parties, the filing party should notify the other party of the filing. It is advisable to file the transaction at least 60 calendar days before closing.
As for the filing process for privatisation tenders or transactions, Communiqué No. 2013/2 provides that it is mandatory to file a pre-notification with the Competition Authority before the public announcement of tender specifications to receive the opinion of the Competition Board, which will include a competitive assessment.
In the case of a public bid, the merger control filing can be performed when the documentation adequately proves the irreversible intention to finalise the contemplated transaction. Filing can also be performed when the documentation at hand adequately proves the irreversible intent to finalise the contemplated transaction.
The notification form is similar to Form CO of the European Commission. One hard copy and an electronic copy of the merger notification form must be submitted to the Competition Board. Recent updates allow notifying parties to submit the notification form via ‘e-Devlet’, an elaborate system of web-based services, including electronic submission. E-devlet was already made available for submissions, especially during the pandemic period. Now, Communiqué No. 2010/4 explicitly mentions this alternative way of submission to make it official.
The information requested includes data in respect of supply and demand structure, imports, potential competition and expected efficiencies. Some additional documents, such as the executed or current copies and sworn Turkish translations of the documents that bring about the transaction, annual reports (eg, balance sheets of the parties) and, if available, market research reports for the relevant market, are also required.
Communiqué No. 2010/4 also brought a modified notification form that will replace the current notification form as of 4 May 2022. According to the modified notification form, there is also a short-form notification (without a fast-track procedure) if a transition from joint control to sole control is at stake or if there are no affected markets within Turkey.
In the event that the parties to a notifiable transaction violate the suspension requirement (ie, close a notifiable transaction without having obtained the approval of the Competition Board or do not notify the notifiable transaction at all), the acquiring party (for the formation of a fully functioning joint venture, all the parent companies are separately deemed to be the acquiring party) receives a turnover-based monetary fine of 0.1 per cent of its annual Turkish turnover generated in the financial year preceding the date of the fining decision. In mergers, both merging parties would be fined.
In any event, the minimum amount of the administrative monetary fine is 47,409 lira for 2022 and is revised annually. The fine does not depend on whether the Competition Authority will ultimately clear the transaction; it is a fixed ratio (0.1 per cent). The Competition Board does not have the power to increase or decrease the fine; therefore, the acquirer would automatically incur the fine once the violation of the suspension requirement is detected.
If, however, there truly is a risk that the transaction is problematic under the SIEC test applicable in Turkey, the Competition Authority may:
- launch ex officio an investigation into the transaction;
- order structural and behavioural remedies to restore the situation as it was before the closing (restitutio in integrum); and
- impose a turnover-based fine of up to 10 per cent of the parties’ annual turnover.
Executive members and employees of the undertakings concerned who are determined to have played a significant role in the violation (failing to file or closing before the approval) may also receive monetary fines of up to 5 per cent of the fine imposed on the undertakings. The transaction will also be invalid and unenforceable in Turkey.
Thus far, the Competition Board has consistently rejected all carve-out or hold-separate arrangements proposed by merging undertakings. Communiqué No. 2010/4 provides that a transaction is deemed to be ‘realised’ (ie, closed) ‘on the date when the change in control occurs’.
Although the wording allows some room to speculate that carve-out or hold-separate arrangements are allowed, it remains to be seen whether the Competition Authority will interpret this provision in such a way. Thus far, it has been consistently rejected by the Competition Board, arguing that a closing is sufficient for the suspension violation fine to be imposed and that a further analysis of whether change in control actually took effect in Turkey is unwarranted.
The Competition Authority publishes the notified transactions on its official website (www.rekabet.gov.tr), with only the names of the parties and their areas of commercial activity. To that end, once notified to the Competition Authority, the existence of a transaction will no longer be a confidential matter.
There are no filing fees required under Turkish merger control proceedings.
The Competition Board, upon its preliminary review of the notification (Phase I), will decide either to approve or to investigate the transaction further (Phase II). It notifies the parties of the outcome within 30 calendar days of a complete filing. In the absence of any notification, the decision is deemed to be approved in accordance with an implied approval mechanism introduced by the relevant legislation.
While the wording of the law implies that the Competition Board should decide within 15 calendar days whether to proceed with Phase II, the Competition Board generally takes more time to form its opinion on the substance of a notification. It is more sensitive to the 30-calendar-day deadline on announcement. Any written request by the Competition Board for missing information will stop the review process and restart the 30-calendar-day period on the date of provision of that information.
In practice, the Competition Authority is quite keen on asking formal questions and adding more time to the review process; therefore, under normal circumstances, it is recommended that the filing be done at least 60 calendar days before the projected closing.
If a notification leads to a Phase II review, it turns into a fully fledged investigation. Under Turkish competition law, Phase II investigations take about six months. If necessary, the Competition Board may extend this period once by up to six months.
In practice, only exceptional cases require a Phase II review, and most notifications obtain a decision within 60 days of the original date of notification. Neither Law No. 4054 nor Communiqué No. 2010/4 foresee a fast-track procedure to speed up the clearance process. Aside from close follow-up with the case handlers reviewing the transaction, the parties have no available means to speed up the review process.
There is no special rule for hostile takeovers; the Competition Board treats notifications for hostile transactions in the same manner as other notifications. If the target does not cooperate and there is a genuine inability to provide information owing to the one-sided nature of the transaction, the Competition Authority tends to use most of its powers of investigation or information request under articles 14 and 15 of Law No. 4054.
The Competition Board may request information from third parties, including customers, competitors and suppliers of the parties and other persons related to the merger or acquisition. It uses this power to define the market and determine the market shares of the parties. Third parties, including the customers and competitors of the parties and other persons related to the merger or acquisition, may request a hearing from the Competition Board during the investigation, subject to the condition that they prove their legitimate interest. They may also challenge the Competition Board’s decision on the transaction before the competent judicial tribunal, again subject to the condition that they prove their legitimate interest.
The Competition Board may either render a clearance or a prohibition decision. It may also give a conditional approval. The reasoned decisions of the Competition Board are served on the representatives to the notifying parties and are also published on the website of the Competition Authority.
The Competition Board may grant conditional clearance and make the clearance subject to the parties observing certain structural or behavioural remedies, such as divestiture, ownership unbundling, account separation and right of access. The number of conditional clearances has increased significantly in recent years.
Final decisions of the Competition Board, including its decisions on interim measures and fines, can be submitted for judicial review before the administrative courts. The plaintiff may initiate a lawsuit within 60 days of the parties’ receipt of the Competition Board’s reasoned decision.
Decisions of the Competition Board are considered as administrative acts. Filing a lawsuit does not automatically stay the execution of the Competition Board’s decision. However, upon request of the plaintiff, the court may decide to stay the execution. The court will stay the execution of the challenged act only if the execution of the decision is likely to cause irreparable damage, and the decision is highly likely to violate the law. The appeal process may take up to two-and-a-half years.
Communiqué No. 2022/2 was published in the Official Gazette on 4 March 2022, and entered into force on 4 May 2022. Communiqué No. 2022/2 raised the jurisdictional turnover thresholds under article 7 of Communiqué No. 2010/4.
Two of the most significant developments that the Communiqué No. 2022/2 entails, inter alia, are the introduction of threshold exemption for undertakings active in certain markets and sectors and the increase of the applicable turnover thresholds for the concentrations that require mandatory merger control filing before the Competition Authority.
Communiqué No. 2022/2 does not seek a Turkish nexus in terms of activities that qualify for the threshold exemption. In other words, it would be sufficient for the target company to be active in the fields of digital platforms, software or gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals or health technologies anywhere in the world for the threshold exemption to become applicable, provided that the target company (1) operates in the Turkish geographical market; or (2) conducts R&D activities in Turkey; or (3) provides services to Turkish users in the fields listed above. Accordingly, Communiqué No. 2022/2 does not require (1) the generation of revenue from customers located in Turkey; or (2) that the target company conduct R&D activities in Turkey; or (3) the provision of services to Turkish users concerning the fields listed above for the exemption on the local turnover thresholds to become applicable.
The increased turnover thresholds and the exemption on the local turnover thresholds mechanism introduced by Communiqué No. 2022/2 would seem to be altered the scope of the transactions that are notifiable to the Competition Authority. On that note, concentrations related to the fields of digital platforms, software or gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals or health technologies, are expected to be more closely scrutinised by the Competition Authority.
The Competition Authority has published the Mergers and Acquisitions Insight Report for 2021. Along with its mission, vision, objectives, priorities and description of its duties and powers, the Competition Authority assessed its activities between 1 January and 31 December 2021 in respect of merger control, with statistical data.
To summarise, the Competition Board assessed 309 transactions in 2021. The number of assessments in 2021 is higher than the average number of assessments made between 2013 and 2020. Only two transactions have been cleared at Phase II investigation, and only three were conditionally cleared. The Competition Board has not prohibited any transaction in 2021.
A notable decision rendered by the Competition Board in 2021 was the Competition Board’s EssilorLuxottica decision. The acquisition of shares in HAL Optical Investments BV, a fully controlled subsidiary of Hal Holding NV, in GrandVision NV (Grandvision) by EssilorLuxottica SA (Essi-Lux) was approved by the Competition Board. The Competition Board identified horizontal overlaps between the activities of Essi-Lux and Atasun in the retail sale of optical products, and vertical overlaps in:
- wholesale of stock lenses;
- wholesale of semi-processed lenses (also known as receipt X lenses – ‘RX lenses’);
- wholesale of branded sunglasses;
- wholesale of frames for branded and optic glasses; and
- manufacture and distribution of ophthalmic machines, equipment and consumables.
Accordingly, the Competition Board conducted its dominant position analysis and evaluated the vertical and horizontal effects of the transaction with regard to the mentioned markets. The behavioural commitments offered by Essi-Lux included the following:
- not engaging the tying sales of branded sunglasses, branded optical frames, ophthalmic lenses and ophthalmic equipment;
- not applying discriminatory conditions with respect to sales of branded sunglasses, branded optical frames, ophthalmic lenses and ophthalmic equipment to equal customers, offering reasonable conditions in any case and applying the same sale terms and conditions that Essi-Lux applies to its subsidiaries at the retail level, to all customers of the merged entity (including Atasun) with respect to sales of branded sunglasses, branded optical frames, ophthalmic lenses, ophthalmic equipment as well as the relevant consumables; and
- the total share of value-based purchases from third-party suppliers that Atasun undertakes with respect to branded sunglasses, branded optical frames and RX lenses will be at the same ratio with or more than that realised in 2019.
At this point, it is worth underlining that this commitment did not cover stock lenses, since Atasun had already acquired all of these from Essi-Lux before the acquisition. As a side note, the Competition Board also stated that the role of commitments is to maintain the existing competitive structure, and not to establish a more competitive market. The Competition Board further took into account the conditions created by covid-19 while considering the efficiency of the commitments and suggested that 2019 would better demonstrate the competitive structure given the economic and financial implications of the covid-19 pandemic on the market in 2020. In relation to vertical coordination risks, the parties’ commitments also included that the commitment that Essi-Lux and Atasun will not share with each other competitively sensitive information that they may acquire from their operations in the vertical markets. To ensure this, the parties’ commitments included detailed assurances to not engage in such sharing of information. Upon its review, the Competition Board found the commitments submitted by the parties adequate to address the competitive concerns raised by the Competition Board. Therefore, the Competition Board approved the transaction under behavioural commitments unlike those of the European Union, where the retail footprint of the transaction was lessened through certain structural remedies.
In TIL/Marport, the Competition Board refused to grant approval to the acquisition of sole control of Marport Liman İşletmeleri Sanayi ve Ticaret Anonim Şirketi (Marport) by Terminal Investment Limited Sàrl (TIL). The Competition Board stated that the transaction mainly related to the container terminal management sector, while Marport’s other activities included temporary storage, pilotage and towage and ancillary port services. The Competition Board defined the relevant product market as ‘port management for container handling services’ by referring to its Limar/Mardaş decision. The Competition Board also made two separate downstream market definitions: (1) port management for container handling services concerning transit traffic; and (2) port management for container-handling services concerning hinterland traffic. As for the relevant geographic market, the Competition Board preferred a narrow definition and defined the relevant geographic market as ‘Northwest Marmara’ for the markets concerning local loads. However, the geographic market definition for the markets concerning transit loads was left open. In defining the relevant geographic markets, the Competition Board took into consideration various factors such as the location of the ports, the transportation facilities and the customer choices. In its competitive assessment, the Competition Board stated that the transaction led to a horizontal overlap in the port management for container-handling services market and a vertical overlap in the container line transportation market. The Competition Board applied the SIEC test rather than solely assessing whether the transaction led to the creation or strengthening of a dominant position in the relevant markets. In conclusion, taking into account that the transaction was likely to cause significant impediment of effective competition, the Competition Board refused to grant clearance within the scope of article 7 of Law No. 4054.
The Competition Board’s no-go decisions are very rare. The Marport decision is of significant importance as it constitutes a recent example in which the Competition Board decided not to clear a joint-to-sole control transaction further to its detailed competitive assessment, based on the SIEC test, which was recently introduced to Turkish competition law enforcement.
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Regulatory and institutional structure
Summarise the regulatory framework for the media sector in your jurisdiction.
The key regulatory framework for the media sector in Mexico is comprised of the following statutes:
- the Federal Telecommunications and Broadcasting Law;
- the Law for the Public Broadcasting System of the Mexican State; and
- the Law on General Communications.
According to the said regulatory framework, the Federal Telecommunications Institute (FTI) is vested with the authority to regulate, promote and oversee the use, enjoyment and exploitation of the radio spectrum, orbital resources, satellite services, public telecommunications networks, and broadcasting and telecommunications provisions.
The FTI is empowered to grant, revoke, renew or modify licences and authorisations in broadcasting and telecommunications sectors, as well as to authorise assignments or changes of control of licensed and authorised individuals or business entities. The FTI also has the authority to regulate matters related to antitrust and fair trading in such sectors.
Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?
According to the Foreign Investment Law, direct foreign investment is allowed up to 49 per cent for both broadcasting services, subject to a standard of reciprocity, and printing and publishing newspapers for distribution in Mexican territory.
There is no specific regulation regarding cross-ownership of newspaper companies and telecommunications and broadcasting companies. However, the Federal Telecommunications and Broadcasting Law sets limits regarding broadcasting and telecommunications licensees that prevent or restrict access to plural information in the same market or the same geographic coverage zone.
For that purpose, the FTI shall order pay TV licensees to include in their service those channels that carry news or information programmes of public interest, to guarantee access to plural information promptly. Also, pay TV licensees shall include at least three channels, in which the content is predominantly produced by national independent programme-makers, whose funding is mostly Mexican in origin.
What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?
Under the Federal Telecommunications and Broadcasting Law, the FTI is empowered to grant the sole licence. The sole licence grants the right to provide, in a convergent manner, all kinds of public telecommunications and broadcasting services. The licensee requiring the use of frequency bands of the radio spectrum for broadcasting purposes shall obtain the appropriate licence separately.
The sole licence shall be granted for commercial, public, private or social use for a term of up to 30 years and may be extended for up to equal terms. The interested party in obtaining a sole licence shall submit a request containing, at least, the following information:
- the name and address of the applicant;
- the general characteristics of the project; and
- documents and information attesting to their technical, legal and administrative conditions.
Obtaining the sole licence from the FTI shall take a minimum of 60 calendar days upon submitting the application; however, the FTI may request additional information where necessary. Once the agency has concluded the analysis and assessment of the documents submitted for this application within such period, and all requirements have been met, the sole licence shall be granted.
The services provided by the licensees shall not grant the privilege or distinction to create any kind of discrimination, and in the case of individuals, all discrimination motivated by ethnic or national origin, gender, age, disability, social background, health condition, religion, sexual orientation, marital status or anything else that undermines human dignity or to nullify or impair the rights and freedoms of individuals shall be prohibited.
The spectrum licence for broadcasting purposes shall be granted for a term of up to 20 years and may be extended for up to equal terms. This licence for commercial and, in some cases, private use, shall be granted only through public auctions with prior payment of the corresponding fee.
When requesting a spectrum licence to provide broadcasting services that involve the participation of foreign investment, a prior and favourable opinion shall be required from the Foreign Investment Commission, and this agency shall verify the limits of the foreign investment outlined in the Mexican Constitution and the Foreign Investment Law.
When granting a broadcasting licence, the FTI may consider the following factors, among others:
- the economic proposal;
- coverage, quality and innovation;
- the prevention of market concentration that conflicts with the public interest;
- the possible entry of new competition into the market; and
- consistency with the licence programme.
Foreign programmes and local content requirements
Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?
There is no specific regulation that restricts or limits the amount of local or foreign content broadcasted. However, the Federal Telecommunications and Broadcasting Law outlines certain rules and incentives regarding content requirements that shall be followed by licensees.
Broadcasted programmes shall promote, among other things:
- family integration;
- sound child development;
- artistic, historical and cultural principles; and
- equality between men and women.
To promote free and harmonious child and adolescent development, broadcasting aimed at this sector shall, among other criteria:
- broadcast programmes and information to support cultural, ethical and social principles;
- avoid content that stimulates or justifies violence; and
- foster interest in knowledge, particularly concerning scientific, artistic and social matters.
Broadcasting licensees shall use the Spanish language in their transmissions. If transmissions are in a foreign language, subtitles or translation into Spanish shall be used. The use of foreign languages without subtitles and translation into Spanish may be authorised by the Ministry of Interior.
Pay TV and audio licensees shall retransmit broadcasting signals of federal institutions free of charge, and shall reserve channels for the transmission of television signals from federal institutions, as indicated by the executive branch, under the following:
- one channel, when the service contains between 31 and 37 channels;
- two channels, when the service contains between 38 and 45 channels; and
- three channels, when the service contains between 46 and 64 channels.
If there are more than 64 channels, the reserve shall increase by one channel for every 32 channels.
When the service contains up to 30 channels, the Ministry of Communications and Transportation may require that a specific channel devote up to six hours daily to transmit programmes indicated by the Ministry of the Interior.
The incentives for licensees regarding local content programmes are that those covering at least 20 per cent of their programmes with national production may increase advertising time up to two percentage points, and those covering at least 20 per cent of their programmes with national independent production may increase advertising time up to five percentage points.
How is broadcast media advertising regulated? Is online advertising subject to the same regulation?
The Federal Telecommunications and Broadcasting Law outlines that broadcasting, pay TV, programme-makers and signal operator licensees shall maintain a prudent balance between advertising and programmes transmitted daily.
Broadcasting licensees shall apply, among others, the following rules:
- that in television stations, commercial advertising time shall not exceed 18 per cent of the total transmission time per channel; and
- in radio stations, commercial advertising time shall not exceed 40 per cent of the total transmission time per channel.
Pay TV licensees shall transmit, daily and per channel, up to six minutes of publicity in every hour of transmission. For this purpose, publicity contained in retransmitted broadcast signals and own channel advertising shall not be deemed as publicity.
Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?
Broadcast television service licensees shall enable pay TV service licensees to retransmit their signal, free of charge and in a non-discriminatory manner, within the same geographic coverage zone, in full, simultaneously and without any changes, including advertising, and with the same quality of the broadcast signal.
Pay TV service licensees shall also retransmit the broadcast television signal, free of charge and in a non-discriminatory manner, within the same geographic coverage zone, in full, simultaneously and without changes, including advertising and with the same quality of the broadcasted signal, and shall include such retransmission in their services, with no additional cost.
Satellite pay TV service licensees shall only retransmit broadcast signals with coverage of 50 per cent or more of the Mexican territory. All pay TV licensees shall retransmit broadcast signals by federal institutions.
Public telecommunications networks or broadcasting television licensees, declared by the FTI as agents with substantial power in either market or as a preponderant economic agent, shall not be entitled to the gratuitous rule of retransmitting signals and under no circumstance shall this be reflected as an additional cost of the services provided to users.
Regulation of new media content
Is new media content and its delivery regulated differently from traditional broadcast media? How?
There is a bill currently in discussion in the Mexican Congress, to amend several provisions of the Federal Telecommunications and Broadcasting Law, so that over-the-top platforms (namely, those platforms that provide video and streaming services to end users) are obliged to include Mexican content in at least 30 per cent of their catalogues, along with several other bills that propose to regulate the content for underage persons and to protect the free speech right for the content creators.
Nowadays there is no specific regulation regarding new media content; however, the right to information, expression and to receive content through public broadcasting services and pay TV services is free, and shall not be subject to any judicial or administrative prosecution or investigation, nor any limitation or prior censorship, and shall be exercised in accordance with the provisions of the Mexican Constitution, international treaties and applicable laws.
When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?
The transition to digital broadcasting went into effect on 31 December 2015. Original licensees using the 700 megahertz (MHz) frequency band freed up by the switchover shall return them to the Mexican government.
At least 90MHz of spectrum freed up by the digital switchover shall be reallocated to Red Compartida, the shared public telecommunications network.
Does regulation restrict how broadcasters can use their spectrum?
The policy for the transition to digital terrestrial television (DTT) outlines the following rules, among others, regarding digital formats:
- A/53 ATSC is the transmission standard that shall be used by television licensees;
- television licensees transmitting DTT shall transmit at least one channel with A/53 ATSC; and
- fixed DTT services shall be transmitted in standard definition quality.
On 17 February 2015, the General Guidelines for Multi-Channelling Access were published in the Official Mexican Gazette to regulate the authorisation and operation conditions for multi-channelling access. Such authorisation shall be granted by the FTI.
Broadcasting licensees with access to television multi-channelling shall transmit at least one channel in high-definition quality, under the terms provided for in the policy for the transition to DTT.
Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?
No specific media plurality rules are in place. The Mexican Constitution outlines that the state shall guarantee that telecommunications and broadcasting services are provided, subject to, among other conditions, competition, quality and plurality.
Also, the Federal Telecommunications and Broadcasting Law outlines provisions regarding cross-ownership and rights of the audience, in which plurality is contemplated. Such rights include providing the users with the benefits of culture, plurality and authenticity of the information.
On 6 May 2019, the FTI initiated an investigation on Telmex, for incurring relative antitrust practices in the telecommunications sector. This law requires certain conduct from licensees regarding cross-ownership, which shall not refrain or limit access to plural information.
Key trends and expected changes
Provide a summary of key emerging trends and hot topics in media regulation in your country.
The Federal Telecommunications Institute (IFT) was recognised by the International Telecommunications Union as a 5G regulator, meaning that Mexico has improved its regulatory environment rapidly and significantly since the implementation of a new legal and regulatory framework and the creation of an independent and strong regulator, positioning Mexico as one of the 60 countries with an advanced level of digital transformation preparation.
Telecomunicaciones de México, a decentralised public institution, was granted the authority to carry out a national telecommunications inventory and provide regional operators with access to it. Understanding the quantity and quality of telecommunications infrastructure is key to designing public policies, business plans, network expansion plans and connectivity objectives to close the digital breach. In addition, Telecomunicaciones de México will be able to acquire, carry and install the equipment to manage and operate any fibre optic network of any federal public administration agency, state-owned company, federal entity and municipal government.
On 21 March 2018, the shared public telecommunications network Red Compartida started operations with more than 30 per cent coverage in the country. Red Compartida offers coverage in 48 different commercial zones and 111 towns known as pueblos mágicos covering about 78.6 per cent of the population, and with an expected coverage of 95.4 per cent by the end of 2022. In addition, the Ministry of Infrastructure, Communications and Transportation Ministry published the Public Sites Connectivity Programme 2022, a national internet coverage project through the installation of wireless services in highways, public plazas, health centres, hospitals, schools and community areas. The connectivity also includes the ‘Smart Villages, sustainable wellbeing’ initiative, which aims to offer free satellite connectivity to public sites in rural areas.
From 28 February 2022, Telcel, Mexico’s largest telecommunications company, operates in 18 cities across Mexico, the first nationwide commercial 5G network in Mexico and announced that by the end of 2022, its network will cover 120 cities. The above makes Mexico the first country in Latin America to commercially launch a nationwide, mass-market 5G network. In addition, it is estimated that Latin America will reach 301 million subscriptions with 5G, but 4G-LTE technology will still dominate with 495 connections in the region.
The 5G network, in addition to providing faster internet connection speeds, provides power savings, cost reductions and mass connectivity support.
In April 2021, an amendment to the Federal Telecommunications and Broadcasting Law ordering the creation of a registry that shall record the biometric data of mobile services’ users, entered into full force and effect; such registry will be managed by the Federal Telecommunications Institute. Pursuant to these amendments, telecommunications carriers such as América Móvil, AT&T and others will be obliged to collect customers’ data and make the corresponding filings with the Federal Telecommunications Institute. In April 2022, the Supreme Court, by unanimous decision, ruled against the proposed amendment, providing that the creation of the biometric data registry did not justify the violation of privacy and human rights.
The covid-19 crisis has promoted the use of connectivity in the execution of different production processes and daily activities. 2021 was a year of recovery for the telecommunications sector, measured in terms of the revenue generation of service providers. The provision of telecommunications services resulted in an aggregate of 526,964 million Mexican pesos, 6.0 per cent more than in 2020. The Competitive Intelligence Unit anticipates sector revenue growth for 2022 in the range of 3.4 to 6.6 per cent in annual terms, with an average scenario of 4.6 per cent.