Abuse of dominant position with regard to competition law in telecomunication sector

The necessity of competition in countries having free market economy is disputable. Competition is a very important process that directs economial units to be effective and to offer more products and services with higher quality and lower prices than the competitors. Therefore effective distrubution of the resources is obtained. Thus economical efficiency and increase in welfare are seen in the society in general. The one and only law regulated in terms of copmpetition law within Turkish law system is RKHK. The prior and determining purpose of the competition law is to protect competition order. There are two important targets of competition law in terms of this purpose mentioned before. The first one is to lay down rules for preventing one or more companies from abusing their dominant position in the market. The second one is to prevent contracts made between companies limiting the competition and to prevent the execution of these contracts made between companies that must compete with others. It will be beneficial to focus on the dominant position concept in terms of our subject matter. It is possible for some enterprises within free market economies to grow and become dominant. However in RKHK article 6; being in dominant position is not found against laws but abusing this dominant position is found to be against laws and it is prohibited. While determining the dominant position there are some benchmarks to take into consideration. In order to talk about dominance, first of all a market definition must be made. It is necessary to determine the market as product and geographical area while making dominant position analysis. In order to make this determination, barriers appear in the trade of said products between countries and regions are examined. The regions and countries determined by these barriers are evaluated as separate geographical markets. The second phase of dominant position procedure is to examine whether the company investigated within product and geographical market determined in the first phase is really in dominant position or not. For this reason, the evaluation of the market power of the said enterprise is made. While evaluating the market power, the most important criterion to consider is the market share. In addition to this, changes in the market share in time, characteristics of the market and market share of the competitors are other aspects to take into consideration. As a result of examining these aspects if it is thought that the enterprise is in a viii dominant position, now we will consider if the dominant position is abused or not as a third phase. Although there is no restriction in RKHK article 6, the abuses are stated one by one. Due to the developments in knowledge and technology and telecommunication sectors, everyday new directions are opened up before us. Telecommunication sector has the characteristic of a natural monopoly for long years. Sector?s becoming liberal depends on eliminating the barriers of lawful access by assigning the services executed in state monopoly during long years to private sectors and by opening them to competitive environment. Market defects seen in some parts of the sector are serious barriers before engaging the whole sector in competition ıt is important to prevent the activities of the enterprises having the monopoly power that are against competition. In sufficient number of regulations will effect the investments made in the sector. The most important justification of the regulation is that the market defects in markets of natural monopoly decrease the social welfare and effects the public benefits in a negative way. However, the regulation of this sector shall not be made by technical regulations. Along with the technical regulations, making juridical regulations strong will strengthen the information sector within the country. At the beginning of the year 2004, by terminating the legal monopoly right of TTAS in terms of voice transmission and infrastructure, it was of course not possible to have a competitive market in terms of this issue immediately. For this reason, more responsibility is assigned to the relevant institutions. The most important institutions among these are founded by Law No. 4052; Telecommunication Institute aims to have the responsibility of regulation in the sector and to make the sector operation healthily and Competition Authority displays activities for establishing competition in the economy in general.