Article 12.2. Scope of Application
1. This Chapter shall apply to:
(a) measures that a Party adopts or maintains relating to access to, and use of, public telecommunications networks or services;
(b) measures adopted or maintained by a Party relating to obligations of suppliers of public telecommunications networks or services; and
(c) other measures that a Party adopts or maintains relating to public telecommunications networks or services. (3)
2. This Chapter shall not apply to measures that a Party adopts or maintains relating to the broadcasting and cablecasting of radio or television programming intended for the public, except to ensure that enterprises providing such services have continued access to and use of public telecommunications networks and services as set out in Article 12.3.
3. Nothing in this Chapter shall be construed to:
(a) obligating a Party, or obligating a Party to require any enterprise, to establish, construct, acquire, lease, operate or supply public telecommunications networks or services, where such networks or services are not offered to the general public; or
(b) require a Party to require any enterprise engaged exclusively in the broadcasting or cablecasting of radio or television programming to make its broadcasting or cablecasting facilities available as a public telecommunications network.
4. Furthermore, this Chapter shall not be construed to prevent a Party from prohibiting persons operating private networks from using their networks to provide public telecommunications networks or services to third persons.
Article 12.3. Access to and Use of Public Telecommunications Networks and Services
1. Subject to a Party's right to restrict the supply of a service in accordance with the reservations set out in its Schedules to Annexes I and II, a Party shall ensure that enterprises supplying telecommunications services of the other Party have access to and may use public telecommunications networks or services offered in its territory or on a cross-border basis on reasonable and non-discriminatory terms and conditions, including, inter alia, as set out in paragraphs 2 through 6.
2. Each Party shall ensure that such enterprises are permitted to:
(a) purchase or lease and connect terminals or other equipment interfacing with public telecommunications networks;
(b) supply services to individual or multiple end-users over owned or leased circuits;
(c) to interconnect privately owned or leased circuits with that Party's public telecommunications networks and services, or with circuits leased or owned by another enterprise; and
(d) perform switching, signaling, processing, and conversion functions; and use operating protocols of its choice.
3. Each Party shall ensure that enterprises of the other Party may use public telecommunications networks and services to transmit information in its territory or across its borders, and to access information contained in databases or otherwise stored in machine-readable form in the territory of either Party.
4. Notwithstanding paragraph 3, a Party may take measures necessary to:
(a) ensure the security and confidentiality of messages, or.
(b) protect the privacy of personal data of telecommunications end-users;
provided that such 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 conditions are imposed on access to and use of public telecommunications networks or services other than those deemed necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their networks or services available to the general public;
(b) protect the technical integrity of public telecommunications networks or services; or
(c) ensuring that service suppliers of the other Party do not supply services that are restricted by the reservations listed by the Parties in their Schedules to Annexes I and II.
6. Provided that they satisfy the criteria set out in paragraph 5, conditions for access to and use of public telecommunications networks or services may include:
(a) a requirement to use specific technical interfaces, including interface protocols, for interconnection with such networks and services;
(b) requirements, where necessary, for the interoperability of such services;
(c) type approval or approval of terminal equipment or other equipment interfacing with the network and technical requirements relating to the connection of such equipment to such networks; and
(d) restrictions on the interconnection of privately owned or leased circuits with such networks or services, or with circuits owned or leased by another company.
7. Nothing in this Article shall prevent a Party from requiring notification, license, concession, permit, registration, or other authorization for an enterprise to supply any type of public telecommunications service in its territory.
Article 12.4. Procedures Regarding Authorizations
1. Where a Party requires a supplier of public telecommunications services to have a license, concession, permit, registration, or other type of authorization to supply public telecommunications networks or services, the Party shall make publicly available:
(a) all applicable criteria and procedures for the granting of the license or concession, permit, registration or other type of authorization;
(b) the time period normally required to make a decision with respect to an application for a license, concession, permit, registration or other type of authorization; and
(c) the terms and conditions of all licenses, concessions, permits, registrations or other types of authorizations it has issued.
2. The Party shall ensure that, upon request of the applicant, the reasons for a decision denying a license, concession, permit, registration or other type of authorization are communicated to the applicant, in accordance with the procedures of each Party.
Article 12.5. Behavior of Dominant Suppliers (4)
Treatment of Dominant Suppliers
1. Each Party shall ensure that dominant suppliers in its territory accord to public telecommunications service suppliers of the other Party treatment no less favorable than that accorded by such suppliers, in like circumstances, to their subsidiaries, their affiliates or non-affiliated service suppliers, with respect to:
(a) the availability, supply, rates, or quality of like public telecommunications networks or services; and
(b) the availability of technical interfaces necessary for interconnection.
Competitive Safeguards
1. Each Party shall maintain appropriate measures to prevent suppliers that, individually or jointly, are dominant suppliers in its territory from employing or continuing to employ anti-competitive practices.
2. The anticompetitive practices referred to in paragraph 1 include:
(a) engaging in anticompetitive cross-subsidization activities;
(b) using information obtained from competitors with anticompetitive results, and
(c) failing to make available to other suppliers of public telecommunications services, in a timely manner, technical information on the essential elements and commercially relevant information that they need to supply public telecommunications services.
Interconnection with Dominant or Major Suppliers
A. General Terms and Conditions
1. Each Party shall ensure that a dominant or major supplier provides interconnection:
(a) at any technically feasible point in the network;
(b) on terms, conditions (including technical standards and specifications), and at rates that are non-discriminatory with respect to other suppliers;
(c) of a quality no less favorable than that supplied to its own similar services, to similar services of unaffiliated service providers of its subsidiaries or other affiliates;
(d) in a timely manner, on terms, conditions (including technical standards and specifications), and at cost-oriented rates that:
(i) are transparent and reasonable, taking into account economic feasibility; and.
(ii) are sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the services to be provided; and
(e) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges reflecting the cost of constructing the necessary additional facilities.
B. Interconnection Options
2. Each Party shall ensure that suppliers of public telecommunications services of the other Party may interconnect their facilities and equipment with those of dominant suppliers in its territory in accordance with at least one of the following options:
(a) a reference interconnection offer or other standard interconnection offer containing rates, terms and conditions that dominant suppliers offer to suppliers of public telecommunications services;
(b) the terms and conditions of an existing interconnection agreement; or
(c) through the negotiation of a new interconnection agreement.
C. Public Availability of Interconnection Negotiation Procedures
3. Each Party shall make publicly available the applicable procedures for interconnection negotiations with dominant suppliers in its territory.
D. Public Availability of Interconnection Agreements Concluded with Dominant Suppliers
4. Each Party shall require dominant suppliers in its territory to register all Interconnection Agreements to which they are a party with its telecommunications regulatory body or other competent regulatory body.
5. Each Party shall make publicly available the Interconnection Agreements in force concluded between dominant suppliers in its territory and any other suppliers of public telecommunications services in its territory.
Article 12.6. Supply and Pricing of Leased Circuits
1. Each Party shall ensure that dominant or major suppliers in its territory supply leased circuits, which are public telecommunications services, to enterprises of the other Party on terms, conditions, and rates that are reasonable and nondiscriminatory.
2. For the purposes of paragraph 1, each Party shall give its telecommunications regulatory body the authority to require dominant or major suppliers in its territory to offer leased circuits to enterprises of the other Party at flat-rate or capacity-based, cost-oriented prices.
Article 12.7. Co-location
1. Each Party shall ensure that dominant or major suppliers in its territory provide to suppliers of public telecommunications services of the other Party the physical co-location of equipment necessary to interconnect with or access unbundled network elements on reasonable, non-discriminatory, and transparent terms, conditions, and cost-oriented rates.
2. Where physical co-location is not feasible for technical reasons or due to space limitations, each Party shall ensure that dominant or major suppliers in its territory provide an alternative solution, such as facilitating virtual co-location, on reasonable, non-discriminatory and transparent terms, conditions and cost-oriented tariffs.
3. Each Party may specify, in accordance with its domestic laws and regulations, the elements subject to paragraphs 1 and 2.
Article 12.8. Access to Poles, Ducts, Pipelines, and Rights-of-Way
Each Party shall ensure that dominant suppliers in its territory provide access to its poles, ducts, conduits, and rights-of-way to suppliers of public telecommunications services of the other Party on terms, conditions, and rates that are reasonable and non-discriminatory.
Article 12.9. Resale
Each Party shall ensure that dominant suppliers in its territory:
(a) offer for resale, at reasonable rates (5), to suppliers of public telecommunications services of the other Party, public telecommunications services that such dominant suppliers supply at retail to end-users; and
(b) do not impose discriminatory or unjustifiable conditions or limitations on the resale of such services. (6)
Article 12.10. Unbundling of Network Elements
1. Each Party shall give its telecommunications regulatory body the authority to require dominant suppliers in its territory to provide to suppliers of public telecommunications services of the other Party access to network elements on an unbundled basis on reasonable, non-discriminatory, and transparent terms, conditions, and cost-oriented rates for the supply of public telecommunications services.
2. Each Party may determine which network elements shall be available in its territory and which suppliers may obtain such elements, in accordance with its domestic laws and regulations.
Article 12.11. Interconnection
1. Each Party shall ensure that suppliers of public telecommunications services in its territory provide, directly or indirectly, interconnection to suppliers of public telecommunications services of the other Party.
2. Each Party shall give its telecommunications regulatory body the authority to require interconnection at cost-oriented rates, provided that there is no agreement between suppliers of public telecommunications services.
3. Each Party shall provide its telecommunications regulatory body with the authority to require suppliers of public telecommunications services to register their Interconnection Agreements.
4. For purposes of paragraph 1, each Party shall ensure that suppliers of public telecommunications services in its territory take reasonable steps to protect the confidentiality of commercially sensitive information of, or relating to, suppliers and end-users of public telecommunications services, and only use such information to provide those services.
Article 12.12. Number Portability
Each Party shall ensure that suppliers of public telecommunications services in its territory provide number portability in a timely manner and on reasonable and non-discriminatory terms and conditions.
Article 12.13. Dialing Parity
Each Party shall ensure that suppliers of public telecommunications services of the other Party are afforded non-discriminatory access to the dialing format of each Party's telephone numbers.
Article 12.14. Flexibility In Choice of Technologies
1. No Party may prevent suppliers of public telecommunications services from having the flexibility to choose the technologies that they use to supply their services, including mobile wireless services, subject to the technical regulations in force in each Party.
2. Nothing in this Article shall be construed to prevent the regulatory body from requiring an additional license or other appropriate authorization to provide such public telecommunications service if an operator intends to provide a service different from that for which it was authorized.
Article 12.15. Universal Service
1. Each Party has the right to define the kind of universal service obligations it wishes to adopt or maintain.
2. Each Party shall administer any universal service obligation it adopts or maintains in a transparent, non-discriminatory, and competitively neutral manner, and shall ensure that any universal service obligation is not more burdensome than necessary for the type of universal service defined by the Party.
Article 12.16. Allocation, Assignment, and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation, assignment, and use of scarce telecommunications resources, including frequencies, numbers, and rights of way, in an objective, timely, transparent, and nondiscriminatory manner, except for those related to governmental uses.
2. A Party's measures relating to spectrum allocation and assignment and frequency management are not per se inconsistent with Article 9.4 (Market Access), which applies to cross-border trade in services, and Chapter 10 (Investment) as provided in Article 9.2 (Scope of Application).
3. Accordingly, each Party retains the right to establish, implement, and maintain spectrum and frequency management policies that may have the effect of limiting the number of suppliers of public telecommunications services, provided that this is done in a manner consistent with other provisions of this Agreement. Likewise, each Party retains the right to allocate and assign frequency bands taking into account present and future needs and spectrum availability.
4. Each Party shall make available to the public the current status of allocated and assigned frequency bands but shall not be obliged to provide detailed identification of allocated and assigned frequencies for specific governmental uses.
5. When allocating spectrum for non-governmental telecommunications services, each Party shall endeavor to rely on an open and transparent public comment process that considers the public interest. Each Party shall seek to rely, in general, on market-based approaches in assigning spectrum for terrestrial nongovernmental telecommunications services.
Article 12.17. Regulatory Authority
1. Each Party shall ensure that its telecommunications regulatory authority is independent and separate from and not accountable to any supplier of public telecommunications services.
2. To this end, each Party shall ensure that its telecommunications regulatory authority has no financial interest in, and no operational role in, any supplier of public telecommunications services.
3. Each Party shall ensure that the decisions and procedures of its regulatory authority are impartial with respect to all market participants. To this end, each Party shall ensure that any financial interest that the Party has in a supplier of public telecommunications services does not influence the decisions and procedures of its regulatory authority for telecommunications.
4. No Party shall accord to a supplier of public telecommunications services more favorable treatment than that accorded to a like supplier of the other Party on the ground that the supplier receiving the more favorable treatment is owned in whole or in part by the national government of either Party.
Article 12.18. Domestic Telecommunications Dispute Settlement
Each Party shall ensure that domestic dispute settlement mechanisms are in place, in accordance with its domestic legislation in force.
Article 12.19. Transparency
In addition to the provisions of Chapter 16 (Transparency), each Party shall ensure that:
(a) regulation established by the telecommunications regulatory authority, including the basis for such regulation, is promptly published or made available to the public;
(b) interested persons are provided, to the extent practicable, by adequate advance public notice, with an opportunity to comment on any regulation proposed by the telecommunications regulatory authority; and
(c) measures relating to public telecommunications networks or services are made available to the public, including measures relating to:
(i) tariffs and other terms and conditions of service;
(ii) technical interface specifications;
(iii) conditions for the connection of terminal or other equipment to the public telecommunications network;
(iv) notification, licensing, permit, registration or other authorization requirements, if any;
(v) information on the bodies responsible for the development, modification, and adoption of measures related to standardization or standards affecting access and use; and
(vi) the procedures related to the settlement of telecommunication disputes referred to in Article 12.18.
Article 12.20. Relationship with other Chapters
In the event of any inconsistency between this Chapter and another Chapter in this Agreement, this Chapter shall prevail to the extent of the inconsistency.
Article 12.21. International Standards and Organizations
The Parties recognize the importance of international standards for the global compatibility and interoperability of telecommunications networks or services, and undertake to promote these standards through the work of relevant international organizations, including the International Telecommunication Union and the International Organization for Standardization.
Chapter 13. ENTRY AND TEMPORARY STAY OF BUSINESS PERSONS
Article 13.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
business activities: those legitimate activities of a commercial nature created and operated for the purpose of obtaining profits in the market. It does not include the possibility of obtaining employment, nor salary or remuneration from a labor source in the territory of the other Party;
temporary entry: the entry of a business person of one Party into the territory of the other Party, without the intention of establishing temporary and permanent residence;
executive functions: those functions assigned within an organization, under which the person has primarily the following responsibilities:
(a) directing the administration of the organization or a relevant component or function thereof;
(b) to establish the policies and objectives of the organization, component or function; or
(c) receive general supervision or direction only from higher-level executives, the organization's board of directors or board of trustees, or the organization's shareholders;
managerial functions: those functions assigned within an organization, under which the person has primarily the following responsibilities:
(a) directing the organization or an essential function within the organization;
(b) supervising and controlling the work of other professional employees, supervisors or managers;
(c) to have the authority to hire and fire, or recommend such actions, as well as other actions with respect to the management of personnel being directly supervised by that person and to perform functions at a higher level within the organizational hierarchy or with respect to the function for which he or she is responsible; or
(d) perform actions at his or her discretion with respect to the day-to-day operation of the function over which that person has authority;
functions involving specialized knowledge: those functions that involve special knowledge of the merchandise, services, research, equipment, techniques, administration of the organization or its interests and their application in international markets, or an advanced level of knowledge or experience in the organization's processes and procedures;
immigration measure: any law, regulation, procedure, provision, requirement or practice that regulates the entry, stay and departure of foreigners;
national: as defined in Article 2.1 (Definitions of General Application);
business person: a national of a Party who engages in trade in goods or services, or in investment activities in the other Party. It does not include the possibility of obtaining employment or wages or remuneration from a labor source in the territory of the other Party;