(c) require a Party to compel any enterprise exclusively engaged in the broadcast or cable distribution of radio or television programming to make available its broadcast or cable facilities as a public telecommunications network; or
(d) prevent a Party from prohibiting a person who operates a private network from using that private network to supply a public telecommunications network or service to third persons.
Article 20.3: Approaches to Regulation
1. The Parties recognise the value of competitive markets to deliver a wide choice in the supply of telecommunications services and to enhance consumer welfare, and that regulation may not be needed if there is effective competition. Accordingly, the Parties recognise that regulatory needs and approaches differ market by market, and that each Party may determine how to implement its obligations under this Chapter.
2. In this respect, the Parties recognise that a Party may:
(a) engage in direct regulation either in anticipation of an issue that the Party expects may arise or to resolve an issue that has already arisen in the market;
(b) rely on the role of market forces, particularly with respect to market segments that are, or are likely to be, competitive or that have low barriers to entry, such as services provided by suppliers of telecommunications services that do not own network facilities; or
(c) use any other appropriate means that benefit the long-term interest of end-users.
Article 20.4: Access to and Use of Public Telecommunications Networks or Services
1. Each Party shall ensure that an enterprise of the other Party is accorded access to and use of public telecommunications networks and services, including leased circuits, offered in its territory or across its borders, and on terms and conditions that are reasonable and non-discriminatory. This obligation shall be applied to paragraphs 2 through 6.
2. Subject to paragraphs 5, 6 and 7, each Party shall ensure that an enterprise of the other Party is permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with a public telecommunications network and that is necessary to supply its services;
(b) connect leased or owned circuits with public telecommunications networks and services, or with circuits leased or owned by another enterprise;
(c) use operating protocols of its choice; and
(d) perform switching, signalling, processing and conversion functions.
3. Each Party shall ensure that an enterprise of the other Party may use public telecommunications networks and services for the movement of information in its territory or across its borders, including for intra-corporate communications, and for access to information contained in a database or otherwise stored in machine-readable form in the territory of the other Party.
4. Notwithstanding paragraph 3, a Party may take measures that are necessary to ensure the security and confidentiality of messages and to protect the personal information of end-users of public telecommunications networks or services, provided that those measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks and services, other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks and services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services.
6. For greater certainty, a Party may impose a condition on access to and use of public telecommunications networks and services pursuant to Article 28.2 (Exceptions and General Provisions – Security Exception).
7. Provided that they satisfy the criteria set out in paragraph 5, conditions for access to and use of public telecommunications networks and services may include:
(a) a requirement to use a specific technical interface, including an interface protocol, for connection with public telecommunications networks and services;
(b) a requirement, if necessary, for the inter-operability of public telecommunications networks and services;
(c) type approval of terminal or other equipment that interfaces with public telecommunications networks and technical requirements relating to the attachment of that equipment to public telecommunications networks;
(d) a restriction on connection of leased or owned circuits with public telecommunications networks or services or with circuits leased or owned by other service suppliers; or
(e) a requirement for notification and licensing.
Article 20.5: Number Portability
Each Party shall ensure that a supplier of public telecommunications services in its territory provides mobile number portability without impairment to quality and reliability for mobile services, on a timely basis, and on terms and conditions that are reasonable and non-discriminatory.
Article 20.6: Competitive Safeguards
1. Each Party shall adopt or maintain appropriate measures for the purpose of preventing suppliers of public telecommunications services that, alone or together, are a major supplier from engaging in or continuing anticompetitive practices.
2. The anti-competitive practices referred to in paragraph 1 include, in particular:
(a) engaging in anti-competitive cross-subsidisation;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available to other suppliers of public telecommunications services, on a timely basis, technical information about essential facilities and commercially relevant information that are necessary for them to provide services.
Article 20.7: Treatment by Major Suppliers
Each Party shall ensure that a major supplier in its territory accords to suppliers of public telecommunications services of the other Party treatment no less favourable than that major supplier accords in like circumstances to its subsidiaries, its affiliates or non-affiliated service suppliers regarding:
(a) the availability, provisioning, rates or quality of like public telecommunications services; and
(b) the availability of technical interfaces necessary for interconnection.
Article 20.8: Resale
A Party may determine, in accordance with its laws and regulations, which public telecommunications services must be offered for resale by a major supplier based on the need to promote competition or to benefit the long-term interests of end-users. If a Party has determined that a service must be offered for resale by a major supplier, that Party shall ensure that any major supplier in its territory does not impose unreasonable or discriminatory conditions or limitations on the resale of that service.
Article 20.9: Interconnection Obligations Relating to Suppliers of Public Telecommunications Services
1. Each Party shall ensure that a supplier of public telecommunications services in its territory provides, directly or indirectly, interconnection with suppliers of public telecommunications services of the other Party.
2. Each Party shall provide its telecommunications regulatory body with the authority to require interconnection at reasonable rates.
3. In carrying out paragraph 1, each Party shall ensure that a supplier of public telecommunications services in its territory takes reasonable steps to protect the confidentiality of commercially sensitive information of, or relating to, suppliers and end-users of public telecommunications services obtained as a result of interconnection arrangements and only uses that information for the purpose of providing these services.
4. A Party may require a supplier of public telecommunications services in its territory to file all interconnection agreements to which it is party with its telecommunications regulatory body.
Article 20.10: Interconnection Obligations Relating to Major Suppliers
1. Each Party shall ensure that a major supplier in its territory provides interconnection for the facilities and equipment of suppliers of public telecommunications services of the other Party at any technically feasible point in the major supplier's network. This interconnection shall be provided:
(a) under non-discriminatory terms, conditions, including technical standards and specifications, and rates;
(b) of a quality no less favourable than that provided by the major supplier for its own like services, for like services of non-affiliated service suppliers, or for its subsidiaries or other affiliates;
(c) on a timely basis, and on terms and conditions, including technical standards and specifications, and at cost-oriented rates, that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier of public telecommunications services of the other Party does not need to pay for network elements or facilities that it does not require for the service to be provided; and
(d) on request, at points in addition to the network termination points offered to the majority of suppliers of public telecommunications services, subject to charges that reflect the cost of construction of necessary additional facilities.
2. Each Party shall ensure that a major supplier in its territory provides suppliers of public telecommunications services of the other Party with the opportunity to interconnect their facilities and equipment with those of the major supplier through at least one of the following options:
(a) a reference interconnection offer containing the rates, terms and conditions that the major supplier offers generally to suppliers of public telecommunications services;
(b) the terms and conditions of an interconnection agreement that is in effect; or
(c) a new interconnection agreement through commercial negotiation.
3. Each Party shall ensure that the procedures applicable for interconnection to a major supplier are made publicly available.
4. Each Party shall provide means for suppliers of the other Party to obtain the rates, terms and conditions necessary for interconnection offered by a major supplier. Those means include, at a minimum, ensuring the public availability of:
(a) interconnection agreements that are in effect between a major supplier in its territory and other suppliers of public telecommunications services in its territory;
(b) rates, terms and conditions for interconnection with a major supplier set by the telecommunications regulatory body or other competent body; or
(c) a reference interconnection offer.
The services for which rates, terms and conditions are made publicly available do not need to include all interconnection-related services offered by a major supplier, as determined by a Party under its laws and regulations.
Article 20.11: Unbundling of Network Elements
Each Party shall provide its telecommunications regulatory body with the authority to require a major supplier in its territory to offer public telecommunications service suppliers access to network elements on an unbundled basis on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory and transparent for the supply of public telecommunications services. A Party may determine, in accordance with its laws and regulations, the network elements required to be made available in its territory and the suppliers that may obtain those elements.
1. Each Party shall ensure that a major supplier in its territory provides service suppliers of the other Party leased circuits services that are public telecommunications services in a reasonable period of time on terms and conditions, and at rates, that are reasonable, and based on a generally-available offer.
2. Further to paragraph 1, each Party shall provide its telecommunications regulatory body with the authority to require a major supplier in its territory to offer leased circuits services that are public telecommunications services to service suppliers of the other Party at capacity-based and cost-oriented prices.
Article 20.13: Co-location
1. Each Party shall ensure that a major supplier that has control over essential facilities in its territory allows suppliers of public telecommunications services of the other Party physical co-location of their equipment necessary for interconnection or access to unbundled network elements, based on a generally-available offer, on a timely basis, and on terms and conditions including technical feasibility and space availability if applicable, and at rates, that are reasonable, non-discriminatory and transparent.
2. Where physical co-location is not practical for technical reasons or because of space limitations, each Party shall endeavour to ensure that a major supplier in its territory provides an alternative solution, such as facilitating virtual co-location, based on a generally available offer, on a timely basis, and on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory and transparent.
3. A Party may determine, in accordance with its laws and regulations, which premises owned or controlled by major suppliers in its territory are subject to
paragraphs 1 and 2, having regard to factors such as the state of competition in the market where colocation is required, and whether those premises can feasibly be economically or technically substituted in order to provide a competing service.
Article 20.14: Access to Poles, Ducts, Conduits and Rights-of-Way 1
Each Party shall ensure that a major supplier in its territory provides access, subject to technical feasibility, to poles, ducts, conduits, rights-of-way and any other structures as determined by the Party, owned or controlled by the major supplier, to suppliers of public telecommunications services of the other Party in the Party’s territory on a timely basis, on terms and conditions, and at rates, that are reasonable, non-discriminatory and transparent.
1 For the purposes of this Article, a supplier of mobile services in a Party’s territory is not a major supplier unless a Party determines that the supplier meets the definition of “major supplier” set out in Article 20.1.
Article 20.15: International Submarine Cable Systems
If a Party has authorised a major supplier in its territory to operate an international submarine cable system as a public telecommunications service, that Party shall ensure that the major supplier accords a supplier of public telecommunications services of the other Party access to the international submarine cable system on reasonable and
non-discriminatory terms and conditions.
Article 20.16: Independent Telecommunications Regulatory Body
1. Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of public telecommunications services. With a view to ensuring the independence and impartiality of telecommunications regulatory bodies, each Party shall ensure that its telecommunications regulatory body does not hold a financial interest or maintain an operating or management role in any supplier of public telecommunications services.
2. Each Party shall ensure that the regulatory decisions of, and the procedures used by, its telecommunications regulatory body are impartial with respect to all market participants.
Article 20.17: Universal Service
Each Party has the right to define the kind of universal service obligations it wishes to maintain. These obligations shall not be regarded as anti-competitive in themselves, provided that they are administered in a transparent, non-discriminatory and competitively neutral manner, and are not more burdensome than necessary for the kind of universal service defined by the Party.
Article 20.18: Licensing
1. If a Party requires a supplier of public telecommunications services to have a licence, the Party shall ensure the public availability of:
(a) all the licensing criteria and procedures that it applies;
(b) the period normally required to reach a decision concerning an application for a licence; and
(c) the terms and conditions of all licences in effect.
2. The Party shall notify an applicant of the outcome of its application without undue delay after a decision has been taken.
3. Each Party shall ensure that, on request, an applicant or a licensee is provided with the reasons for the:
(a) denial of a licence;
(b) imposition of supplier-specific conditions on a licence;
(c) refusal to renew a licence; or
(d) revocation of a licence.
Article 20.19: Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation and use of scarce resources related to telecommunications, 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 shall not be required to provide detailed identification of frequencies allocated 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 16.5 (Cross-border Trade in Services – Market Access), either as it applies to cross-border trade in services or to a covered investment of the other Party. Accordingly, each Party retains the right to adopt and maintain spectrum and frequency management policies that may have the effect of limiting the number of suppliers of public telecommunications networks or 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 endeavour to rely on an open and transparent process that considers the public interest, including the promotion of competition. Each Party shall endeavour to rely generally on market-based approaches in assigning spectrum for terrestrial commercial telecommunications services, if appropriate. To this end, a Party may use mechanisms such as auctions, administrative incentive pricing or unlicensed use, if appropriate, to assign spectrum for commercial use.
Article 20.20: Transparency
1. Further to Article 14.2 (Transparency, Anti-Corruption and Responsible Business Conduct – Publication), each Party shall endeavour to ensure that when its telecommunications regulatory body seeks input on a proposal for a regulation, that body provides relevant suppliers of public telecommunications networks or services of the other Party operating in its territory an opportunity to comment. That body shall:
(a) make the proposal public or otherwise available to any interested persons;
(b) include an explanation of the purpose of and reasons for the proposal;
(c) provide interested persons with adequate public notice of the ability to comment and reasonable opportunity for comment;
(d) to the extent practicable, make publicly available all relevant comments filed with it; and
(e) respond to all significant and relevant issues raised in comments filed, in the course of issuance of the final regulation.
2. Each Party shall ensure that relevant information on conditions affecting access to and use of public telecommunications networks or services are publicly available, including:
(a) tariffs and other terms and conditions of service;
(b) specifications of technical interfaces with those networks and services;
(c) information on bodies responsible for the preparation and adoption of standards affecting that access and use;
(d) conditions for attaching terminals or other equipment; and
(e) requirements for notification or licensing, if any.
Article 20.21: Enforcement
Each Party shall provide its competent authority with the authority to enforce the Party's measures relating to the obligations set out in Article 20.4, Article 20.5, Article 20.6, Article 20.7, Article 20.8, Article 20.9, Article 20.10, Article 20.11,
Article 20.12, Article 20.13, Article 20.14 and Article 20.15. That authority shall include the ability to impose effective sanctions, which may include financial penalties, injunctive relief (on an interim or final basis), or the modification, suspension or revocation of licences.
Article 20.22: Resolution of Telecommunications Disputes
1. Each Party shall ensure that an enterprise of the other Party has timely recourse to a telecommunications regulatory body or other relevant body of the Party to resolve disputes with a supplier of public telecommunications services relating to a matter covered by this Chapter.
2. Each Party shall ensure that any supplier of public telecommunications services aggrieved by a final determination or decision of its relevant telecommunications regulatory body may obtain a review of that determination or decision in accordance with its laws and regulations.
3. A Party shall not permit the making of an application for review to constitute grounds for non-compliance with the determination or decision of its telecommunications regulatory body unless its relevant body determines otherwise.
Article 20.23: Promoting and Improving Telecommunications Connectivity
1. The Parties recognize the importance of promoting and improving connectivity to public telecommunications networks and services so that all users can participate in, contribute to and benefit from international trade that relies on the use of telecommunications.
2. Further to paragraph 1, each Party shall endeavour to promote and improve connectivity to public telecommunications networks and services within its territory, which may be achieved through the removal of existing barriers or the implementation of policies and programs that can support improved access for marginalized groups, including small and medium-sized enterprises, women, rural communities and Indigenous Peoples.
3. The Parties shall endeavour to exchange information on any action a Party takes related to paragraph 2 using existing cooperation mechanisms, such as the International Telecommunications Union, to the extent practicable.
Article 20.24: Relation to International Organizations
The Parties recognise the importance of international standards for global compatibility and interoperability of telecommunications networks and services, and undertake to promote these standards through the work of relevant international bodies.
Article 20.25: Technical Cooperation
1. The Parties shall endeavour to cooperate:
(a) in the exchange of experiences and information regarding telecommunications policies, regulations and standards; and
(b) on the promotion of government-to-government training programs for developing specialized skills in telecommunications.
2. The Parties intend to share relevant contact points in order to facilitate the cooperation outlined in paragraph 1.
Article 20.26: Relation to Other Chapters
In the event of any inconsistency between this Chapter and another Chapter of this Agreement, this Chapter prevails to the extent of the inconsistency.
Chapter 21. DIGITAL TRADE
Article 21.1. Definitions
For the purposes of this Chapter:
algorithm means a defined sequence of steps, taken to solve a problem or obtain a result;
commercial electronic message means an electronic message in any form intended to directly or indirectly promote goods, works, or services, or the business reputation of a person engaged in an economic or independent professional activity;
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 15.1 (Investment – Definitions);
(b) an investor of a Party as defined in Article 15.1 (Investment – Definitions); or
(c) a service supplier of a Party as defined in Article 16.1 (Cross-Border Trade in Services – Definitions),
but does not include a financial institution or a cross-border financial service supplier of a Party as defined in Article 18.1 (Financial Services – 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, but does not include a digitized representation of a financial instrument, including money; (1)
electronic address means an address used in connection with the transmission of an electronic message to an electronic mail account, instant messaging account, telephone account, or any similar account;
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 message means a message sent by any means of telecommunication, including a text, sound, voice, or image message;
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 and message;
enterprise means an entity constituted or organized under applicable law, whether or not for profit, and whether privately-owned or governmentally-owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association or similar organization, and a branch of an enterprise;
government data means data held by the central government, disclosure of which is not restricted under a Party’ law, and which a Party makes digitally available for public access and use;