1. Each Party shall ensure that major suppliers in its territory provide to suppliers of public telecommunications networks or services of the other Party physical co-location of equipment necessary for interconnection or access to unbundled network elements in a timely fashion, on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory, and transparent.
2. Where physical co-location under paragraph 1 is not practical for technical reasons or because of space limitations, each Party shall ensure that major suppliers in its territory cooperate with suppliers of public telecommunications networks or services to find and implement a practical and commercially viable alternative solution in a timely fashion, on terms and conditions, and cost-oriented rates, that are reasonable, non-discriminatory and transparent. Such solutions may include, but are not limited to:
(a) permitting facilities-based suppliers to locate equipment in a nearby building and to connect such equipment to the major supplier's network;
(b) conditioning additional equipment space or virtual co-location in a timely fashion, on terms and conditions, and at cost oriented rates, that are reasonable, non-discriminatory and transparent;
(c) optimising the use of existing space; or (d) finding adjacent space.
3. Each Party may determine, in accordance with its laws and regulations, the locations at which it requires major suppliers in its territory to provide the physical co- location or the practical and commercially viable alternative solutions referred to in paragraphs 1 and 2.
Article 9.17. Access to Facilities
1. Each Party shall ensure that major suppliers in its territory provide access to poles, ducts, conduits, rights of way, transmission towers, underground facilities, and any other structures deemed necessary by the Party, owned or controlled by such major suppliers to suppliers of public telecommunications networks or services of the other Party in a timely fashion, on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory, and transparent.
2. Each Party may determine, in accordance with its laws and regulations, the poles, ducts, conduits, rights of way, transmission towers, underground facilities or other structures to which it requires major suppliers in its territory to provide access under paragraph 1 on the basis of the state of competition in the relevant market.
Article 9.18. Denial of Access
If access to any part of a major supplier's network, including but not limited to access to interconnection, co-location, poles, ducts, conduits, rights of way, transmission towers or underground facilities, is denied through a decision of a Party's telecommunications regulatory body, that Party shall ensure that its telecommunications regulatory body provides the access seeker with a clear and transparent explanation of its decision to deny such access.
Section D. Other Measures
Article 9.19. Independent Regulatory Bodies and Government Ownership
1. Each Party shall ensure that any telecommunications regulatory body that it establishes or maintains is separate from, and not accountable to, any supplier of public telecommunications networks or services. To this end, each Party shall ensure that the Party's telecommunications regulatory body does not hold any financial interest or maintain an operating role in any such supplier.
2. Each Party shall ensure that the decisions and procedures of its telecommunications regulatory body are impartial with respect to all interested persons. To this end, each Party shall ensure that any financial interest that it holds in a supplier of public telecommunications networks or services does not influence the decisions and procedures of its telecommunications regulatory body.
3. Each Party shall ensure that the decisions of, and the procedures used by, its telecommunications regulatory body shall be fair and impartial and shall be made and implemented without undue delay.
Article 9.20. Universal Service
Each Party shall administer any universal service obligation that it maintains in a transparent, non-discriminatory, and competitively neutral manner and shall ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined.
Article 9.21. Licensing Process
1. When a Party requires a supplier of public telecommunications networks or services to have a license, the Party shall make publicly available:
(a) the procedures for applying for all such licences, and the criteria by which applications for such licences are assessed,
(b) the standard terms and conditions applicable to such licences; and
(c) the period normally required to reach a decision concerning an application for a license.
2. Each Party shall ensure that, on request, an applicant receives the reasons for its denial of a license.
Article 9.22. Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation and use of scarce telecommunications resources, including frequencies and numbers, in an objective, timely, transparent, and non-discriminatory manner.
2. Each Party shall make publicly available the current state of allocated frequency bands but shall not be required to provide detailed identification of frequencies allocated for specific government uses.
3. A Party's measures allocating and assigning spectrum and managing frequency are not measures that are per se inconsistent with Article 8.5 (Market Access) of Chapter 8 (Trade in Services). 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 networks or services, provided it does so in a manner consistent with other provisions of 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 non-government telecommunications networks or services, each Party shall endeavour to rely on an open and transparent public comment process that considers the overall public interest. Each Party shall endeavour to rely generally on market based approaches in assigning spectrum for terrestrial non-government telecommunications services.
Article 9.23. Enforcement
1. Each Party shall provide its relevant bodies the authority to enforce compliance with the Party's measures relating to the obligations set out in Articles 9.4 to 9.17:
Access and Use (Article 9.4);
Interconnection (Article 9.5);
Number Portability (Article 9.6);
Dialling Parity (Article 9.7);
Submarine Cable Systems (Article 9.8);
General Competitive Safeguards (Article 9.9);
Treatment by Major Suppliers (Article 9.10);
Competitive Safeguards (Article 9.11);
Resale (Article 9.12);
Unbundling of Network Elements (Article 9.13);
Interconnection with Major Suppliers (Article 9.14);
Provisioning and Pricing of Leased Circuit Services (Article 9.15);
Co-Location (Article 9.16); and
Access to Facilities (Article 9.17).
2. Such authority shall include the ability to impose, or seek from administrative or judicial bodies, effective sanctions which may include financial penalties, injunctive relief (on an interim or final basis), or the modification, suspension, and revocation of licenses.
Article 9.24. Resolution of Telecommunications Complaints and Disputes
Further to Chapter 17 (Transparency), each Party shall ensure the following:
(a) suppliers of public telecommunications networks or services of the other Party may seek timely review by a telecommunications regulatory body or other relevant body of the Party to resolve complaints by or disputes between suppliers of public telecommunications networks or services regarding the Party's measures relating to matters set out in Articles 9.4 to 9.17;
(b) suppliers of public telecommunications networks or services of the other Party that have requested interconnection with a major supplier in the Party's territory may seek review, within a reasonable and publicly specified period after the supplier of public telecommunications networks or services requests interconnection, by its telecommunications regulatory body to review disputes regarding the terms, conditions, and rates for interconnection with such major supplier;
(c) any service supplier that is aggrieved or whose interests are adversely affected by a determination or decision of the Party's telecommunications regulatory body may obtain review of the determination or decision by an impartial and independent judicial authority; and
(d) neither Party shall permit an application for judicial review to constitute grounds for non-compliance with the determination or decision of the telecommunications regulatory body unless the relevant judicial body stays such determination or decision.
Article 9.25. Transparency of Measures Relating to Telecommunications
Further to Chapter 17 (Transparency) and subject to Articles 9.1 (Objective), 9.4 (Access and Use), 9.11 (Competitive Safeguards), 9.14 (Interconnection with Major Suppliers), 9.18 (Denial of Access), 9.21 (Licensing Process) and 9.22 (Allocation and Use of Scarce Resources), each Party shall ensure that:
(a) regulatory decisions, including the basis for such decisions of its telecommunications regulatory body, are promptly published or otherwise made available to all interested persons; and
(b) its measures relating to public telecommunications networks or services are made publicly available, including measures relating to:
(i) tariffs and other terms and conditions of service;
(ii) procedures relating to judicial and other adjudicatory proceedings;
(iii) specifications of technical interfaces;
(iv) conditions for attaching terminal or other equipment to the public telecommunications network; and
(v) notification, permit, registration, or licensing requirements, if any.
Article 9.26. Flexibility In the Choice of Technologies
1. Neither Party may prevent suppliers of public telecommunications networks or services from having the flexibility to choose the technologies that they use to supply their services, including commercial mobile wireless services and packet based services, subject to requirements necessary to satisfy legitimate public policy interests (15).
2. Notwithstanding paragraph 1, a Party may apply measures that limit the technologies or standards that a supplier of public telecommunications networks or services may use to supply its services, provided that its measures are designed to achieve a legitimate public policy objective and are not prepared, adopted or applied in a manner that creates unnecessary obstacles to trade.
Article 9.27. Industry Participation
1. Each Party shall facilitate the involvement of suppliers of public telecommunications networks or services of the other Party operating in its territory in the regulation of the telecommunications industry, in a manner that is open to any participant in the telecommunications industry in the territory of the Party concerned.
2. Industry participation shall include the following objectives:
(a) to assist in representing the interests of market entrants and incumbents;
(b) to provide feedback to the regulatory agency on its decisions; and
(c) to prepare standards governing relationships between suppliers.
3. Each Party shall ensure its service suppliers comply with a standard formulated by the industry:
(a) where they have agreed to do so; or
(b) where the regulator has approved and implemented the standard as an enforceable measure.
Article 9.28. Relation to other Chapters
In the event of any inconsistency between this Chapter and another Chapter, this Chapter shall prevail to the extent of the inconsistency.
Article 9.29. Consultation
At the request of either Party, the Parties shall enter into consultations to discuss any issues arising under this Chapter, including issues of interpretation and issues arising due to technological or industry developments.
Article 9.30. Cooperation
The Parties shall explore additional avenues of cooperation, including capacity building measures in the area of telecommunications competition policy and other technical and regulatory issues, for the purpose of enhancing each Party's ability to enforce its laws and regulations governing telecommunications.
Article 9.31. Relation to International Organisations and Agreements
The Parties recognize the importance of international standards for global compatibility and inter-operability of telecommunications networks or services and undertake to promote such standards through the work of relevant international bodies, including the International Telecommunications Union and the International Organization for Standardization.
Chapter 10. Movement of Natural Persons
Article 10.1. Objectives
The objectives of this Chapter are to:
(a) provide for rights and obligations additional to those set out in Chapter 8 (Trade in Services) and Chapter 12 (Investment) in relation to the movement of natural persons between the Parties for business purposes;
(b) facilitate the movement of natural persons engaged in the conduct of trade and investment between the Parties; and
(c) establish streamlined and transparent procedures for applications for immigration formalities for the temporary entry of natural persons to whom this Chapter applies, while recognising the need to ensure border security and to protect the domestic labour force and permanent employment in the territory of the Parties.
Article 10.2. Scope
1. This Chapter shall apply, as set out in each Party's schedule of specific commitments in Annex 4 (Schedules of Movement of Natural Persons Commitments), to measures affecting the movement of natural persons of a Party into the territory of the other Party. Such persons may include:
(a) business visitors;
(b) contractual service suppliers;
(c) executives of a business headquartered in a Party establishing a branch or subsidiary, or other commercial presence of that business in the other Party;
(d) intra-corporate transferees; or
(e) installers and servicers.
2. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
Article 10.3. Definitions
For the purposes of this Chapter:
(a) granting Party means a Party who receives an application for temporary entry from a natural person of the other Party who is covered by paragraph 1 of Article 10.2 (Scope);
(b) immigration formality means a visa, permit, pass or other document or electronic authority permitting a natural person of a Party to enter, reside, work or establish commercial presence in the territory of the granting Party; and
(c) temporary entry means entry by a natural person covered by this Chapter, without the intent to establish permanent residence.
Article 10.4. Immigration Measures
1. Nothing in this Chapter, Chapter 8 (Trade in Services) or Chapter 12 (Investment) shall prevent a Party from applying measures to regulate the entry of natural persons of the other Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under this Chapter or to unduly impair or delay trade in goods or services or the conduct of investment activities under this Agreement.
2. The sole fact of requiring natural persons to meet eligibility requirements prior to entry to a Party shall not be regarded as nullifying or impairing benefits accruing to the other Party under this Chapter, or of unduly impairing or delaying trade in goods or services or the conduct of investment activities under this Agreement.
Article 10.5. Grant of Temporary Entry
Each Party shall, in accordance with this Chapter and that Party's schedule of specific commitments in Annex 4 (Schedules of Movement of Natural Persons Commitments), grant temporary entry or extension of temporary stay to natural persons of the other Party covered by paragraph 1 of Article 10.2 (Scope), provided those natural persons:
(a) follow prescribed application procedures for the immigration formality sought; and
(b) meet all relevant eligibility requirements for the relevant immigration formality permitting temporary entry or extension of temporary stay to the granting Party.
Article 10.6. Schedules of Commitments for the Movement of Natural Persons
Each Party shall set out in Annex 4 (Schedules of Movement of Natural Persons Commitments) a schedule containing its specific commitments for the temporary entry and stay in its territory of natural persons of the other Party covered by paragraph 1 of Article 10.2 (Scope). These schedules shall specify the conditions and limitations governing those commitments, including lengths of stay.
Article 10.7. Spouses and Dependants
For a natural person who has been granted temporary entry or extension of temporary stay under this Chapter for at least 12 months and who has a spouse and/or dependants, a Party shall, upon application, grant the accompanying spouse and/or dependants temporary entry and stay in its territory for an equal period to that of the natural person. A Party shall also, upon application, allow the accompanying spouses and/ or dependants who have been granted temporary entry and stay under an immigration formality pursuant to this Article to work subject to the Party's laws and regulations, relevant licensing, administrative and registration requirements.
Article 10.8. Processing of Applications
1. Where an application for an immigration formality is required by a Party, that Party shall process promptly complete applications for immigration formalities or extensions thereof received from natural persons or representative (16) of natural persons of the other Party covered by paragraph 1 of Article 10.2 (Scope).
2. Each Party shall, upon request and within a reasonable period after receiving a complete application for an immigration formality from a natural person or representative of natural person of the other Party covered by paragraph 1 of Article 10.2 (Scope), notify the natural person or its representative of:
(a) the receipt of the application;
(b) the status of the application; and
(c) the decision concerning the application including, if approved, the period of stay and other conditions or, if refused, any avenues for review.
3. In relation to a complete application for an immigration formality covered by paragraph 1 of Article 10.2 (Scope), where practicable the granting Party shall both make a decision and notify the natural person or its representative of that decision prior to the natural person's arrival in its territory.
4. Any fees imposed in respect of the processing of an immigration formality shall be reasonable and in accordance with each Party's laws and regulations.
Article 10.9. Transparency
Each Party shall:
(a) publish or otherwise make publicly available explanatory material on all relevant immigration formalities which pertain to or affect the operation of this Chapter;
(b) no later than six months after the date of entry into force of this Agreement publish, such as on its immigration website, or otherwise make publicly available, the requirements for the movement of natural persons under this Chapter, including explanatory material and relevant forms and documents that will enable natural persons of the other Party to become acquainted with those requirements;
(c) establish or maintain appropriate mechanisms to respond to inquiries from the other Party, and interested persons of the other Party, regarding measures affecting the temporary entry and temporary stay of natural persons of the other Party; and
(d) upon modifying or amending any immigration measure that affects the temporary entry of natural persons, ensure that the information published or otherwise made available pursuant to subparagraph (b) is updated as soon as possible within 90 days.
Article 10.10. Application of Chapter 20 (consultations and Dispute Settlement)
1. The Parties shall endeavour to settle any differences arising out of the implementation of this Chapter through consultations.
2. A Party shall not have recourse to Chapter 20 (Consultations and Dispute Settlement) regarding a refusal to grant temporary entry under this Chapter unless:
(a) the matter involves a pattern of practice on the part of the granting Party; and
(b) the natural persons affected have exhausted all available domestic remedies regarding the particular matters.
Chapter 11. Framework on Mutual Recognition Arrangements
Article 11.1. Objectives
The objectives of this Chapter are to:
(a) provide the framework for the development of Mutual Recognition Arrangements on qualifications, registration, licensing and certification requirements and experience for the fulfilment in whole or in part, of standards and criteria for the authorisation, licensing or certification of professional services suppliers; and
(b) promote the exchange of information and adoption of best practices on standards and criteria between the Parties,
in order to facilitate the mobility of professional service suppliers between the Parties.
Article 11.2. Scope
1. The Parties shall encourage the development of Mutual Recognition Arrangements among competent bodies on professional services, by facilitating discussion and exchange of information between these bodies.
2. Wherever appropriate, recognition by the relevant competent bodies should be based on multilaterally agreed criteria.
Article 11.3. Definitions
For the purposes of this Chapter:
competent authority refers to a body with authority in relation to certain professional services, or to an authorized agency of such a body. A competent authority may take the form of, for example, a professional institution, regulatory body or governmental agency and may have been established under the laws and regulations of a Party.
Article 11.4. Responsibilities and Administration
1. The Parties, through the FTA Joint Commission or subsidiary body established by it shall:
(a) develop and monitor procedures for fostering the development and implementation of Mutual Recognition Arrangements between the competent authorities or bodies of the Parties;
(b) exchange information by whatever means considered most appropriate particularly on assessment/evaluation processes and the adopted competencies, criteria, standards, or benchmarks pertaining to mutual recognition;
(c) promote acceptable international standards, criteria and best practices to facilitate the effective and efficient delivery of professional services;
(d) to the extent possible, maintain a current listing of all Mutual Recognition Arrangements and be updated on the progress of any Mutual Recognition Arrangement being entered into between the competent authorities or bodies of the Parties; and