(b) the period that it normally requires to reach a decision concerning an application for a license; and
(c) the terms and conditions of licenses in effect.
2. Each Party shall ensure that, on request, an applicant or licensee receives the reasons for the:
(a) denial of a license;
(b) imposition of supplier-specific conditions on a license;
(c) revocation of a license; or
(d) tefusal to renew a license.
Article 18.21. Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation and use of scarce telecommunications resources, including frequencies, numbers and rights-of-way, in an objective, timely, transparent, and non-discriminatory manner.
2. Each Party shall make publicly available the current state of frequency bands allocated and assigned to specific suppliers but retains the right not to provide detailed identification of frequencies that are allocated or assigned for specific government uses.
3. For greater certainty, a measure of a Party that allocates or assigns spectrum or manages frequency is not in itself inconsistent with Article 15.5 (Market Access) either as it applies to cross-border trade in services or through the operation of Article 15.2 (Scope) to an investor or covered investment of another Party. Accordingly, each Party retains the right to establish and apply spectrum and frequency management policies that may have the effect of limiting the number of suppliers of public telecommunications services, provided that the Party does so in a manner that is consistent with this Agreement. This includes the ability to allocate frequency bands, taking into account current and future needs and spectrum availability.
4. When making a spectrum allocation for commercial telecommunications services, each Party shall endeavor to rely on an open and transparent process that considers the public interest, including the promotion of competition.
5. Each Party shall endeavor to rely generally on market-based approaches in assigning spectrum for terrestrial commercial telecommunications services. To this end, each Party may use mechanisms such as auctions, if appropriate, to assign spectrum for commercial use.
Article 18.22. Enforcement
Each Party shall provide its competent authority the authority to enforce the Party's measures relating to the obligations set out in Article 18.3 (Access and Use), Article 18.4. (Obligations Relating to Suppliers of Public Telecommunications Services), Article 18.5 (Treatment by Major Suppliers of Public Telecommunications Services), Article 18.6 (Competitive Safeguards), Article 18.7 (Resale), Article 18.8 (Unbundling of Network Elements), Article 18.9 (Interconnection with Major Suppliers), Article 18.10 (Provisioning and Pricing of Leased Circuits Services), Article 18.11 (Co-Location), Article 18.12 (Access to Poles, Ducts, Conduits, and Rights-of-Way) and Article 18.13 (Submarine Cable Systems). That authority shall include the ability to impose effective sanctions, which may include financial penalties, injunctive relief (on an interim or final basis), corrective orders, or the modification, suspension, or revocation of licenses.
Article 18.23. Resolution of Disputes
1, Further to Article 29.3 (Administrative Proceedings) and Article 29.4 (Review and Appeal), each Party shall ensure that:
Recourse
(a) enterprises have recourse to the telecommunications regulatory body of the Party to resolve disputes with a supplier of public telecommunications services regarding the Party's measures relating to matters set out in Article 18.3 (Access and Use), Article 18.4 (Obligations Relating to Suppliers of Public Telecommunications Services), Article 18.5 (Treatment by Major Suppliers of Public Telecommunications Services), Article 18.6 (Competitive Safeguards), Article 18.7 (Resale), Article 18.8 (Unbundling of Network Elements), Article 18.9 (Interconnection with Major Suppliers), Article 18.10 (Provisioning and Pricing of Leased Circuits Services), Article 18.11 (Co-Location), Article 18.12 (Access to Poles, Ducts, Conduits, and Rights-of-Way), and Article 18.13 (Submarine Cable Systems);
(b) if the telecommunications regulatory body declines to initiate action on a request to resolve a dispute, it shall, on request, provide a written explanation for its decision within a reasonable period of time; (15)
(c) a supplier of public telecommunications services of another Party that has requested interconnection with a major supplier in the Party's territory has, within a reasonable and publicly specified period of time after the supplier requests interconnection, recourse to its telecommunications regulatory body to resolve disputes regarding the appropriate terms, conditions and rates for interconnection with that major supplier; and
Reconsideration (16)
(d) an enterprise whose legally protected interests are adversely affected by a determination or decision of the Party's telecommunications regulatory body may appeal to or petition the body to reconsider that determination or decision. No Party shall permit the making of an application for reconsideration to constitute grounds for non-compliance with the determination or decision of the telecommunications regulatory body, unless the regulatory body issues an order that the determination or decision not be enforced while the proceeding is pending. A Party may limit the circumstances under which reconsideration is available, in accordance with its laws and regulations.
Judicial Review
2. No Party shall permit the making of an application for judicial review to constitute grounds for non-compliance with the determination or decision of the telecommunications regulatory body, unless the judicial body issues an order that the determination or decision not be enforced while the proceeding is pending.
Article 18.24. Transparency
1, Further to Article 29.2 (Publication), each Party shall ensure that when its telecommunications regulatory body seeks input (17) for a proposal for a regulation, that body:
(a) makes the proposal public or otherwise available to any interested persons; (b) includes an explanation of the purpose of and reasons for the proposal;
(c) provides interested persons with adequate public notice of the ability to comment and reasonable opportunity for comment;
(d) to the extent practicable, makes publicly available all relevant comments filed with it; and
(e) responds to all significant and relevant issues raised in comments filed, in the course of issuance of the final regulation. (18)
2. Further to Article 29.2 (Publication), each Party shall ensure that its measures relating to public telecommunications services are publicly available, including:
(a) tariffs and other terms and conditions of service;
(b) specifications of technical interfaces;
(c) conditions for attaching terminal or other equipment to the public telecommunications network;
(d) licensing, permit, registration, or notification requirements, if any;
(e) general procedures relating to resolution of telecommunications disputes provided for in Article 18.23 (Resolution of Disputes); and
(f) any measures of the telecommunications regulatory body if the government delegates to other bodies the responsibility for preparing, amending, and adopting standards-related measures affecting access and use.
Article 18.25. International Roaming Services
1. The Parties shall endeavor to cooperate on promoting transparent and reasonable rates for international mobile roaming services that can help promote the growth of trade between the Parties and enhance consumer welfare.
2. A Party may take steps to enhance transparency and competition with respect to international mobile roaming rates and technological alternatives to roaming services, such as:
(a) ensuring that information regarding retail rates is easily accessible to consumers; and
(b) minimizing impediments to the use of technological alternatives to roaming, whereby consumers can access telecommunications services using the device of their choice when visiting the territory of a Party from the territory of another Party.
Article 18.26. Relation to other Chapters
If there is an inconsistency between this Chapter and another Chapter of this Agreement, this Chapter shall prevail to the extent of the inconsistency.
Article 18.27. Telecommunications Committee
1. The Parties hereby establish a Telecommunications Committee composed of government representatives of each Party.
2. The Telecommunications Committee shall:
(a) review and monitor the implementation and operation of this Chapter, with a view to ensuring the effective implementation of the Chapter by enabling responsiveness to technological and regulatory developments in telecommunications to ensure the continuing relevance of this Chapter to Parties, service suppliers and end-users;
(b) discuss issues related to this Chapter and any other issues relevant to the telecommunications sector the Parties may decide;
(c) report to the Commission on the findings and the outcomes of its discussions; and (d) carry out other functions delegated to it by the Commission.
3. The Telecommunications Committee shall meet at venues and times as the Parties may decide.
4. The Parties may decide to invite representatives of relevant entities other than the Parties, including representatives of private sector entities, having the necessary expertise relevant to the issues to be discussed, to attend meetings of the Telecommunications Committee.
Chapter 19. DIGITAL TRADE
Article 19.1. Definitions
For the purposes of this Chapter:
Algorithm means a defined sequence of steps, taken to solve a problem or obtain a result;
computing facility means a computer server or storage device for processing or storing information for commercial use;
covered person means:
(a) a covered investment as defined in Article 1.5 (General Definitions);
(b) an investor of a Party as defined in Article 14.1 (Definitions); or
(c) a service supplier of a Party as defined in Article 15.1 (Definitions), but does not include a covered person as defined in Article 17.1 (Definitions);
digital product means a computer program, text, video, image, sound recording, or other product that is digitally encoded, produced for commercial sale or distribution, and that can be transmitted electronically. For greater certainty, digital product does not include a digitized representation of a financial instrument, including money; (1)
electronic authentication means the process or act of verifying the identity of a party to an electronic communication or transaction and ensuring the integrity of an electronic communication;
electronic signature means data in electronic form that is in, affixed to, or logically associated with, an electronic document or message, and that may be used to identify the signatory in relation to the electronic document or message and indicate the signatory's approval of the information contained in the electronic document or message;
government information means non-proprietary information, including data, held by the central government;
information content provider means a person or entity that creates or develops, in whole or in part, information provided through the Internet or another interactive computer service;
interactive computer service means a system or service that provides or enables electronic access by multiple users to a computer server;
personal information means information, including data, about an identified or identifiable natural person;
trade administration document means a form issued or controlled by a Party that must be completed by or for an importer or exporter in connection with the import or export of goods; and
unsolicited commercial electronic communication means an electronic message, which is sent to an electronic address of a person for commercial or marketing purposes without the consent of the recipient or despite the explicit rejection of the recipient. (2)
Article 19.2. Scope and General Provisions
1. The Parties recognize the economic growth and opportunities provided by digital trade and the importance of frameworks that promote consumer confidence in digital trade and of avoiding unnecessary barriers to its use and development.
2. This Chapter applies to measures adopted or maintained by a Party that affect trade by electronic means.
3. This Chapter does not apply:
(a) to government procurement; or
(b) except for Article 19.18 (Open Government Data), to information held or processed by or on behalf of a Party, or measures related to that information, including measures related to its collection.
4. For greater certainty, a measure that affects the supply of a service delivered or performed electronically is subject to Chapter 14 (Investment), Chapter 15 (Cross-Border Trade in Services), and Chapter 17 (Financial Services), including any exception or non-conforming measure set out in this Agreement that is applicable to the obligations contained in those Chapters.
Article 19.3. Customs Duties
1. No Party shall impose customs duties, fees, or other charges on or in connection with the importation or exportation of digital products transmitted electronically, between a person of one Party and a person of another Party.
2. For greater certainty, paragraph 1 does not preclude a Party from imposing internal taxes, fees, or other charges on a digital product transmitted electronically, provided that those taxes, fees, or charges are imposed in a manner consistent with this Agreement.
Article 19.4. Non-Discriminatory Treatment of Digital Products
1. No Party shall accord less favorable treatment to a digital product created, produced, published, contracted for, commissioned, or first made available on commercial terms in the territory of another Party, or to a digital product of which the author, performer, producer, developer, or owner is a person of another Party, than it accords to other like digital products. (3)
2. This Article does not apply to a subsidy or grant provided by a Party, including a government-supported loan, guarantee, or insurance.
Article 19.5. Domestic Electronic Transactions Framework
1. Each Party shall maintain a legal framework governing electronic transactions consistent with the principles of the UNCITRAL Model Law on Electronic Commerce 1996.
2. Each Party shall endeavor to:
(a) avoid unnecessary regulatory burden on electronic transactions; and
(b) facilitate input by interested persons in the development of its legal framework for electronic transactions.
Article 19.6. Electronic Authentication and Electronic Signatures
1. Except in circumstances provided for under its law, a Party shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form.
2. No Party shall adopt or maintain measures for electronic authentication and electronic signatures that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods or electronic signatures for that transaction; or
(b) prevent parties to an electronic transaction from having the opportunity to establish before judicial or administrative authorities that their transaction complies with any legal requirements with respect to authentication or electronic signatures.
3. Notwithstanding paragraph 2, a Party may require that, for a particular category of transactions, the electronic signature or method of authentication meets certain performance standards or is certified by an authority accredited in accordance with its law.
4. Each Party shall encourage the use of interoperable electronic authentication.
Article 19.7. Online Consumer Protection
1. The Parties recognize the importance of adopting and maintaining transparent and effective measures to protect consumers from fraudulent or deceptive commercial activities as referred to in Article 21.4.2 (Consumer Protection) when they engage in digital trade.
2. Each Party shall adopt or maintain consumer protection laws to proscribe fraudulent and deceptive commercial activities that cause harm or potential harm to consumers engaged in online commercial activities.
3. The Parties recognize the importance of, and public interest in, cooperation between their respective national consumer protection agencies or other relevant bodies on activities related to cross-border digital trade in order to enhance consumer welfare. To this end, the Parties affirm that cooperation under paragraphs 21.4.3 through 21.4.5 (Consumer Protection) includes cooperation with respect to online commercial activities.
Article 19.8. Personal Information Protection
1. The Parties recognize the economic and social benefits of protecting the personal information of users of digital trade and the contribution that this makes to enhancing consumer confidence in digital trade.
2. To this end, each Party shall adopt or maintain a legal framework that provides for the protection of the personal information of the users of digital trade. In the development of this legal framework, each Party should take into account principles and guidelines of relevant international bodies, (4) such as the APEC Privacy Framework and the OECD Recommendation of the Council concerning Guidelines governing the Protection of Privacy and Transborder Flows of Personal Data (2013).
3. The Parties recognize that pursuant to paragraph 2, key principles include: limitation on collection; choice; data quality; purpose specification; use limitation; security safeguards; transparency; individual participation; and accountability. The Parties also recognize the importance of ensuring compliance with measures to protect personal information and ensuring that any restrictions on cross-border flows of personal information are necessary and proportionate to the risks presented.
4. Each Party shall endeavor to adopt non-discriminatory practices in protecting users of digital trade from personal information protection violations occurring within its jurisdiction.
5. Each Party shall publish information on the personal information protections it provides to users of digital trade, including how:
(a) a natural person can pursue a remedy; and
(b) an enterprise can comply with legal requirements. 6. Recognizing that the Parties may take different legal approaches to protecting personal information, each Party should encourage the development of mechanisms to promote compatibility between these different regimes. The Parties shall endeavor to exchange information on the mechanisms applied in their jurisdictions and explore ways to extend these or other suitable atrangements to promote compatibility between them. The Parties recognize that the APEC Cross-Border Privacy Rules system is a valid mechanism to facilitate cross-border information transfers while protecting personal information.
Article 19.9. Paperless Trading
Each Party shall endeavor to accept a trade administration document submitted electronically as the legal equivalent of the paper version of that document.
Article 19.10. Principles on Access to and Use of the Internet for Digital Trade
The Parties recognize that it is beneficial for consumers in their territories to be able to:
(a) access and use services and applications of a consumer's choice available on the Internet, subject to reasonable network management;
(b) connect the end-user devices of a consumer's choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of a consumer's Internet access service supplier.
Article 19.11. Cross-Border Transfer of Information by Electronic Means
1. No Party shall prohibit or restrict the cross-border transfer of information, including personal information, by electronic means if this activity is for the conduct of the business of a covered person.
2. This Article does not prevent a Party from adopting or maintaining a measure inconsistent with paragraph 1 that is necessary to achieve a legitimate public policy objective, provided that the measure:
(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and
(b) does not impose restrictions on transfers of information greater than are necessary to achieve the objective. (5)
Article 19.12. Location of Computing Facilities
No Party shall require a covered person to use or locate computing facilities in that Party's territory as a condition for conducting business in that territory.
Article 19.13. Unsolicited Commercial Electronic Communications
1. Each Party shall adopt or maintain measures providing for the limitation of unsolicited commercial electronic communications.
2. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic communications sent to an electronic mail address that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages; or
(b) require the consent, as specified in the laws and regulations of each Party, of recipients to receive commercial electronic messages.
3. Each Party shall endeavor to adopt or maintain measures that enable consumers to reduce or prevent unsolicited commercial electronic communications sent other than to an electronic mail address.
4. Each Party shall provide recourse in its law against suppliers of unsolicited commercial electronic communications that do not comply with a measure adopted or maintained pursuant to paragraph 2 or 3.
5. The Parties shall endeavor to cooperate in appropriate cases of mutual concern regarding the regulation of unsolicited commercial electronic communications.
Article 19.14. Cooperation
1. Recognizing the global nature of digital trade, the Parties shall endeavor to:
(a) exchange information and share experiences on regulations, policies, enforcement and compliance relating to digital trade, including:
(i) personal information protection, particularly with a view to strengthening existing international mechanisms for cooperation in enforcing laws protecting privacy,
(ii) security in electronic communications,
(iii) authentication, and
(iv) government use of digital tools and technologies to achieve better government performance;
(b) cooperate and maintain a dialogue on the promotion and development of mechanisms, including the APEC Cross-Border Privacy Rules, that further global interoperability of privacy regimes;
(c) actively participate in regional and multilateral fora to promote the development of digital trade;
(d) encourage development by the private sector of methods of self-regulation that foster digital trade, including codes of conduct, model contracts, guidelines, and enforcement mechanisms;
(e) promote access for persons with disabilities to information and communications technologies; and