public telecommunications network means telecommunications infrastructure used to provide public telecommunications services;
public telecommunications service means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information, and excludes value-added services;
physical co-location means physical access to space in order to install, maintain, or repair equipment, at premises owned or controlled and used by a supplier to provide public telecommunications services;
reference interconnection offer means an interconnection offer extended by a major supplier and filed with or approved by a telecommunications regulatory body (18) that sufficiently details the terms, rates, and conditions for interconnection such that a supplier of public telecommunications services that is willing to accept it may obtain interconnection with the major supplier on that basis;
service supplier of the other Party means, with respect to a Party, a person that is either a covered investment in the territory of the Party or a person of the other Party and that seeks to supply or supplies services in or into the territory of the Party, and includes a supplier of public telecommunications services;
telecommunications means the transmission and reception of signals by any electromagnetic means;
telecommunications regulatory body means a body at the central level of government responsible for the regulation of telecommunications;
user means a service consumer or a service supplier; and
value-added services means services that add value to telecommunications services through enhanced functionality, and specifically:
(a) for the United States, means those services as defined in 47 U.S.C. § 153(20); and
(b) for Korea, means those services as defined in Article 4.4 of the Telecommunications Business Act.
Chapter Fifteen. ELECTRONIC COMMERCE
Article 15.1. GENERAL
The Parties recognize the economic growth and opportunity that electronic commerce provides, the importance of avoiding barriers to its use and development, and the applicability of the WTO Agreement to measures affecting electronic commerce.
Article 15.2. ELECTRONIC SUPPLY OF SERVICES
The Parties affirm that measures affecting the supply of a service delivered or performed electronically are subject to the obligations contained in the relevant provisions of Chapters Eleven through Thirteen (Investment, Cross-Border Trade in Services, and Financial Services), which are subject to any exceptions or non-conforming measures set out in this Agreement that are applicable to such obligations.
Article 15.3. DIGITAL PRODUCTS
1. Neither Party may impose customs duties, fees, or other charges (1) on or in connection with the importation or exportation of:
(a) if it is an originating good, a digital product fixed on a carrier medium; or
(b) adigital product transmitted electronically. (2)
2. Neither Party may accord less favorable treatment to some digital products (3) than it accords to other like digital products
(a) on the basis that:
(i) the digital products receiving less favorable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party, or
(ii) the author, performer, producer, developer, distributor, or owner of such digital products is a person of the other Party; or
(b) so as otherwise to afford protection to other like digital products that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in its territory.
3. Neither Party may accord less favorable treatment to digital products:
(a) created, produced, published, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party than it accords to like digital products created, produced, published, contracted for, commissioned, or first made available on commercial terms in the territory of a non-Party; or
(b) whose author, performer, producer, developer, distributor, or owner is a person of the other Party than it accords to like digital products whose author, performer, producer, developer, distributor, or owner is a person of a non-Party.
4. Paragraphs 2 and 3 do not apply to measures adopted or maintained in accordance with Article 11.12 (Non-Conforming Measures), 12.6 (Non-Conforming Measures), or 13.9 (Non-Conforming Measures).
5. Paragraph 2 does not apply to:
(a) subsidies or grants that a Party provides to a service or service supplier, including government-supported loans, guarantees, and insurance; or
(b) services supplied in the exercise of governmental authority, as defined in Article 12.1.6 (Scope and Coverage).
6. This Article does not apply to measures affecting the electronic transmission of a series of text, video, images, sound recordings, and other products scheduled by a content provider for aural and/or visual reception, and for which the content consumer has no choice over the scheduling of the series.
Article 15.4. ELECTRONIC AUTHENTICATION AND ELECTRONIC SIGNATURES
1. Neither Party may adopt or maintain legislation for electronic authentication that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction;
(b) prevent parties from having the opportunity to establish before judicial or administrative authorities that their electronic transaction complies with any legal requirements with respect to authentication; or
(c) deny a signature legal validity solely on the basis that the signature is in electronic form.
2. Notwithstanding paragraph 1, a Party may require that, for a particular category of transactions, the method of authentication meet certain performance standards or be certified by an authority accredited in accordance with the Partyâs law, provided the tequirement:
(a) serves a legitimate governmental objective; and
(b) is substantially related to achieving that objective.
Article 15.5. ONLINE CONSUMER PROTECTION
1. The Parties recognize the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent and deceptive commercial practices when they engage in electronic commerce.
2. The Parties recognize the importance of cooperation between their respective national consumer protection agencies on activities related to cross-border electronic commerce in order to enhance consumer welfare.
3. Each Party's national consumer protection enforcement agencies shall endeavor to cooperate with those of the other Party, in appropriate cases of mutual concern, in the enforcement of laws against fraudulent and deceptive commercial practices in electronic commerce.
Article 15.6. PAPERLESS TRADING
1. Each Party shall endeavor to make trade administration documents available to the public in electronic form.
2. Each Party shall endeavor to accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents.
Article 15.7. PRINCIPLES ON ACCESS TO AND USE OF THE INTERNET FOR ELECTRONIC COMMERCE
To support the development and growth of electronic commerce, each Party recognizes that consumers in its territory should be able to:
(a) access and use services and digital products of their choice, unless prohibited by the Party's law;
(b) run applications and services of their choice, subject to the needs of law enforcement;
(c) connect their choice of devices to the Internet, provided that such devices do not harm the network and are not prohibited by the Party's law; and
(d) have the benefit of competition among network providers, application and service providers, and content providers.
Article 15.8. CROSS-BORDER INFORMATION FLOWS
Recognizing the importance of the free flow of information in facilitating trade, and acknowledging the importance of protecting personal information, the Parties shall endeavor to refrain from imposing or maintaining unnecessary barriers to electronic information flows across borders.
Article 15.9. DEFINITIONS
For Purposes of this Chapter:
carrier medium means any physical object designed principally for use in storing a digital product by any method now known or later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, and includes, but is not limited to, an optical medium, a floppy disk, or a magnetic tape;
digital products means computer programs, text, video, images, sound recordings, and other products that are digitally encoded and produced for commercial sale or distribution, regardless of whether they are fixed on a carrier medium or transmitted electronically; (4)
electronic authentication means the process or act of establishing the identity of a party to an electronic communication or transaction or 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, and that may be used to identify the signatory in relation to the electronic document and indicate the signatory's approval of the information contained in the electronic document;
electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means; and
trade administration documents means forms a Party issues or controls that must be completed by or for an importer or exporter in connection with the import or export of goods.
Chapter Sixteen. COMPETITION-RELATED MATTERS
Article 16.1. COMPETITION LAW AND ANTICOMPETITIVE BUSINESS CONDUCT
1. Each Party shall maintain or adopt competition laws that promote and protect the competitive process in its market by proscribing anticompetitive business conduct. Each Party shall take appropriate action with respect to anticompetitive business conduct with the objective of promoting economic efficiency and consumer welfare.
2. Each Party shall maintain an authority or authorities responsible for the enforcement of its national competition laws. The enforcement policy of each Party's authorities responsible for the enforcement of such laws is to treat persons who are not persons of the Party no less favorably than persons of the Party in like circumstances, and each Party's authorities intend to maintain this policy.
3. Each Party shall ensure that a respondent in an administrative hearing convened to determine whether conduct violates its competition laws or what administrative sanctions or remedies should be ordered for violation of such laws is afforded the opportunity to present evidence in its defense and to be heard in the hearing. In particular, each Party shall ensure that the respondent has a reasonable opportunity to cross-examine any witnesses or other persons who testify in the hearing and to review and rebut the evidence and any other collected information on which the determination may be based.
4. Each Party shall provide persons subject to the imposition of a sanction or remedy for violation of its competition laws with the opportunity to seek review of the sanction or remedy in a court of that Party.
5. Each Party shall provide its authorities responsible for the enforcement of its national competition laws with the authority to resolve their administrative or civil enforcement actions by mutual agreement with the subject of the enforcement action. A Party may provide for such agreements to be subject to judicial approval.
6. Each Party shall publish rules of procedure for administrative hearings convened to determine whether conduct violates its competition laws or what administrative sanctions or remedies should be ordered for violation of such laws. These rules shall include procedures for introducing evidence in such proceedings, which shall apply equally to all parties to the proceeding.
7. The Parties recognize the importance of cooperation and coordination between their respective authorities to promote effective competition law enforcement. Accordingly, the Parties shall cooperate in relation to their enforcement policies and in the enforcement of their respective competition laws, including through mutual assistance, notification, consultation, and exchange of information.
Article 16.2. DESIGNATED MONOPOLIES
1. Each Party shall ensure that any privately-owned monopoly that it designates after the date this Agreement enters into force and any government monopoly that it designates or has designated:
(a) acts in a manner that is not inconsistent with the Party's obligations under this Agreement wherever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions, or impose quotas, fees, or other charges;
(b) acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, (1) including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, except to comply with any terms of its designation (2) that are not inconsistent with subparagraph (c) or (d); (3)
(c) provides non-discriminatory treatment to covered investments, to goods of the other Party, and to service suppliers of the other Party in its purchase or sale of the monopoly good or service in the relevant market; and
(d) does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anticompetitive practices in a non- monopolized market in its territory that adversely affect covered investments.
2. Nothing in this Chapter shall be construed to prevent a Party from designating a monopoly or maintaining a designated monopoly.
3. This Article does not apply to government procurement.
Article 16.3. STATE ENTERPRISES
1. Each Party shall ensure that any state enterprise that it establishes or maintains:
(a) acts in a manner that is not inconsistent with the Party's obligations under this Agreement wherever such enterprise exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges; and
(b) accords non-discriminatory treatment in the sale of its goods or services to covered investments.
2. Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining a state enterprise.
Article 16.4. DIFFERENCES IN PRICING
Articles 16.2 and 16.3 shall not be construed to prevent a monopoly or state enterprise from charging different prices in different markets, or within the same market, where such differences are based on normal commercial considerations, such as taking account of supply and demand conditions.
Article 16.5. TRANSPARENCY
1. The Parties recognize the value of transparency in their competition enforcement policies.
2. On request of a Party, each Party shall make available to the other Party public information concerning its:
(a) competition law enforcement activities;
(b) state enterprises and designated monopolies, public or private, at any level of government, provided that the request indicates the entities involved, specifies the particular goods or services and markets concerned, and includes some indicia that these entities may be engaging in practices that may hinder trade or investment between the Parties; and
(c) exemptions and immunities to its competition laws, provided that the request specifies the particular goods or services and markets of concern, and includes indicia that the exemption or immunity may hinder trade or investment between the Parties.
3. Each Party shall ensure that all final administrative decisions finding a violation of its competition laws are in writing and set out any relevant findings of fact and the reasoning and legal analysis on which the decision is based. Each Party shall further ensure that the decisions and any orders implementing them are published or, where publication is not practicable, otherwise made available to the public in such a manner as to enable interested persons and the other Party to become acquainted with them. The version of the decisions or orders that the Party makes available to the public may omit business confidential information or other information that is protected by its law from public disclosure.
Article 16.6. CROSS-BORDER CONSUMER PROTECTION
1. The Parties recognize the importance of cooperation on matters related to their consumer protection laws in order to enhance the welfare of their consumers. Accordingly, the Parties shall cooperate, in appropriate cases of mutual concern, in the enforcement of their consumer protection laws.
2. The Parties shall endeavor to strengthen cooperation between the United States Federal Trade Commission, on the one hand, and the Ministry of Finance and Economy of Korea and the Korea Fair Trade Commission, on the other, in areas of mutual concern relating to their respective consumer protection laws, including by:
(a) consulting on consumer protection policies and exchanging information related to the enactment and administration of their consumer protection laws;
(b) strengthening cooperation in detecting and preventing fraudulent and deceptive commercial practices against consumers;
(c) consulting on ways to reduce consumer protection law violations that have significant cross-border dimensions; and
(d) supporting implementation of the OECD Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices Across Borders (2003).
3. Nothing in this Article shall limit the discretion of an agency referred to in paragraph 2 to decide whether to take action in response to a request by a counterpart agency of the other Party, nor shall it preclude any of those agencies from taking action with respect to any particular matter.
4. Each Party shall endeavor to identify, in areas of mutual concern and consistent with its own important interests, obstacles to effective cooperation with the other Party in the enforcement of its consumer protection laws, and shall consider modifying its domestic legal framework to reduce such obstacles.
Article 16.7. CONSULTATIONS
1. To foster understanding between the Parties, or to address specific matters that arise under this Chapter, each Party shall, on request of the other Party, enter into consultations regarding representations made by the other Party. In its request, the Party shall indicate, if relevant, how the matter affects trade or investment between the Parties.
2. The Party to which a request for consultations has been addressed shall accord full and sympathetic consideration to the concerns raised by the other Party.
3. To facilitate discussion of the matter that is the subject of the consultations, each Party shall endeavor to provide relevant non-confidential information to the other Party.
Article 16.8. DISPUTE SETTLEMENT
Neither Party may have recourse to dispute settlement under this Agreement for any matter arising under Article 16.1, 16.6, or 16.7.
Article 16.9. DEFINITIONS
For purposes of this Chapter:
Consumer Protection Laws Means:
(a) in the case of Korea, Chapters II, IV.3, [X, and X of the Framework Act on Consumer, and the Fair Labeling and Advertising Act and its implementing regulations; and
(b) in the case of the United States, laws and regulations prohibiting "unfair or deceptive acts or practices" within the meaning of Section 5 of the Federal Trade Commission Act;
a delegation includes a legislative grant, and a government order, directive, or other act, transferring to the monopoly or state enterprise, or authorizing the exercise by the monopoly or state enterprise of, governmental authority;
designate means, whether formally or in effect, to establish, designate, or authorize a monopoly or to expand the scope of a monopoly to cover an additional good or service;
government monopoly means a monopoly that is owned, or controlled through ownership interests, by the central government of a Party; (4)
in accordance with commercial considerations means consistent with normal business practices of privately-held enterprises in the relevant business or industry;
market means the geographical and commercial market for a good or service;
monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser ofa good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant; and
non-discriminatory treatment means national treatment and most-favored-nation
treatment, as set out in the relevant provisions of this Agreement, including the terms and conditions set out in the relevant Annexes thereto.
Chapter Seventeen. GOVERNMENT PROCUREMENT
Article 17.1. GENERAL PROVISIONS
1. The Parties reaffirm their rights and obligations under the GPA and their interest in further expanding bilateral trading opportunities in each Party's government procurement market.
2. The Parties recognize their shared interest in promoting international liberalization of government procurement markets in the context of the rules-based international trading system. The Parties shall continue to cooperate in the review under Article XXIV:7 of the GPA and on procurement matters in APEC and other appropriate international fora.
3. Nothing in this Chapter shall be construed to derogate from either Party's rights or obligations with respect to the other Party under the GPA.
4. The Parties confirm their desire and determination to apply the APEC Non-Binding Principles on Government Procurement, as appropriate, to all their government procurement that is outside the scope of the GPA and this Chapter.
Article 17.2. SCOPE AND COVERAGE
1. This Chapter applies to any measure regarding covered procurement.
2. For purposes of this Chapter, covered procurement means procurement for governmental purposes:
(a) of goods, services, or any combination thereof:
(i) as specified in a Party's Schedule to Annex 17-A; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including purchase; lease; rental or hire purchase, with or without an option to buy; build-operate-transfer contracts; and public works concession contracts;
(c) for which the value equals or exceeds the relevant threshold provided for in Annex 17-A;
(d) by a procuring entity; and
(c) procurement conducted for the specific purpose of providing international assistance, including development aid.
4. For greater certainty relating to the procurement of digital products as defined in Article 15.9 (Definitions):
(a) covered procurement includes the procurement of digital products; and