Article 13.7. Independent Telecommunications Regulatory Bodies
1. Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of public telecommunications services. To this end, each Party shall ensure that its telecommunications regulatory body does not hold a 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 services does not influence the decisions and procedures of its telecommunications regulatory body.
Article 13.8. Universal Service
Each Party shall administer any universal service obligation that it maintains or adopts 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 13.9. Licensing Procedures
1. When a Party requires a supplier of public telecommunications services to have a license, the Party shall make publicly available:
(a) the licensing criteria and procedures it applies, and the time it normally requires to act on an application, for issuing a license; and
(b) the terms and conditions of all licenses it has issued.
2. Each Party shall ensure that, upon request, an applicant receives the reasons for the denial of a license.
Article 13.10. Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for allocating and using scarce telecommunications resources, including frequencies, numbers, and rights of way, in an objective, timely, transparent, and non-discriminatory manner.
2. Each Party shall make publicly available the current state of allocated frequency bands but shall not be required to provide detailed identification of frequencies allocated for specific uses.
3. Decisions on allocating and assigning spectrum and frequency management are not measures that are inconsistent with Article 11.4 (Market Access), which is applied to Chapter Ten (Investment) through Article 11.1(3) (Scope and Coverage). Accordingly, each Party retains the right to exercise its spectrum and frequency management policies, which may affect the number of suppliers of public telecommunications services, provided that this is done in a manner that is consistent with the provisions of this Agreement. The Parties also retain the right to allocate frequency bands taking into account existing and futureneeds.
Article 13.11. Enforcement
Each Party shall ensure that its competent authority is authorized to enforce domestic measures relating to the obligations set out in Articles 13.2 through 13.5. Such 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, and revocation of licenses.
Article 13.12. Procedures for Resolving Domestic Telecommunications Disputes
Further to Articles 20.4 (Administrative Proceedings) and 20.5 (Review and Appeal), each Party shall ensure the following:
Recourse to Telecommunications Regulatory Bodies
(a) (i) Each Party shall ensure that enterprises of the other Party may have recourse to a national telecommunications regulatory body or other relevant body to resolve disputes arising under domestic measures addressing a matter set out in Articles 13.2 through 13.5.
(ii) Each Party shall ensure that suppliers of public telecommunications services of the other Party that have requested interconnection with a major supplier in its territory may have recourse, within a reasonable and publicly available period of time after the supplier requests interconnection, to a national telecommunications regulatory body or other relevant body to resolve disputes regarding the terms, conditions, and rates for interconnection with such major supplier.
Reconsideration
(b) Each Party shall ensure that an enterprise that is aggrieved or whose interests are adversely affected by a determination or decision of a national telecommunications regulatory body or other relevant body may petition the body to reconsider its determination or decision. Neither Party may permit such a petition to constitute grounds for non-compliance with such determination or decision of the telecommunications regulatory body or other relevant body unless an appropriate authority stays such determination or decision.
Judicial Review
(c) Each Party shall ensure that any enterprise aggrieved by a determination or decision of the national telecommunications regulatory body or other relevant body may obtain judicial review of such determination or decision by an impartial and independent judicial authority.
Article 13.13. Transparency
Further to Article 20.2 (Publication), each Party shall make publicly available its measures relating to access to and use of public telecommunications services including its measures relating to:
(a) tariffs and other terms and conditions of service;
(b) specifications for technical interfaces;
(c) bodies responsible for preparing, amending, and adopting standards-related measures affecting access and use;
(d) conditions for attaching terminal or other equipment to the public telecommunications network; and
(e) notification, permit, registration, or licensing requirements, if any.
Article 13.14. Flexibility In the Choice of Technologies
Each Party shall endeavor to not prevent suppliers of public telecommunications services from having the flexibility to choose the technologies that they use to supply their services, including commercial mobile wireless services.
Article 13.15. Forbearance
The Parties recognize the importance of relying on market forces to achieve wide choices in the supply of telecommunications services. To this end, where provided for under domestic law, each Party may forbear from applying regulation to a telecommunication service that the Party classifies as a public telecommunications service if its telecommunications regulatory body determines that:
(a) enforcement of such regulation is not necessary to prevent unreasonable or discriminatory practices;
(b) enforcement of such regulation is not necessary for the protection of consumers; and
(c) forbearance is consistent with the public interest, including promoting and enhancing competition among suppliers of public telecommunications services.
Article 13.16. Relationship 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 13.17. Definitions
For purposes of this Chapter:
commercial mobile services means public telecommunications services supplied through mobile wireless means;
cost-oriented means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services;
dialing parity means the ability of a subscriber to use of an equal number of digits to access a public telecommunications service, regardless of the public telecommunications services supplier chosen by such end-user;
enterprise means an "enterprise" as defined in Article 2.1 (Definitions of General Application) and includes a branch of an enterprise;
end-user means a final consumer of or subscriber to a public telecommunications service, including any service supplier other than a supplier of public telecommunications services;
essential facilities means facilities of a public telecommunications network or service that:
(a) are exclusively or predominantly provided by a single or limited number of suppliers, and
(b) cannot feasibly be economically or technically substituted in order to provide a service;
information service means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service; interconnection means linking with suppliers providing public telecommunications services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
leased circuit means telecommunications facilities between two or more designated points that are made available solely to, or dedicated exclusively for use by, a particular customer or other users of the customer's choosing;
major supplier means a supplier of public telecommunications services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications services as a result of:
(a) control over essential facilities; or
(b) use of its position in the market;
network element means a facility or equipment used in supplying a public telecommunications service, including features, functions, and capabilities provided by means of such facility or equipment;
non-discriminatory means treatment no less favorable than that accorded to any other user of like public telecommunications services in like circumstances;
number portability means the ability of end-users of public telecommunications services to retain, at the same location, existing telephone numbers without impairment of quality, reliability, or convenience when switching like suppliers of public telecommunications services;
physical co-location means physical access to and control over space in order to install, maintain, or repair equipment, at premises owned or controlled and used by a major supplier to provide public telecommunications services;
private network means a telecommunications network that is used exclusively for intra enterprise communications;
public telecommunications network means telecommunications infrastructure which a Party requires to provide public telecommunications services between defined network termination points;
public telecommunications service means any telecommunications service which 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, but does not include the offering of information services;
reference interconnection offer means an interconnection offer that a major supplier extends and that is filed with or approved by a telecommunications regulatory body and that is sufficiently detailed to enable a supplier of public telecommunications services that is willing to accept its rates, terms, and conditions to obtain interconnection without having to engage in negotiations with the major supplier concemed;
telecommunications means the transmission and reception of signals by any electromagnetic means, including by photonic means;
telecommunications regulatory body means a body responsible for the regulation of telecommunications; and
user means an end-user or a supplier of public telecommunications services.
Chapter Fourteen. Temporary Entry for Business Persons
Article 14.1. General Principles
1. Further to Article 1.2 (Objectives), this Chapter reflects the preferential trading relationship between the Parties, the mutual desire of the Parties to facilitate temporary entry of business persons under the provisions of Annex 14.3 on a reciprocal basis and of establishing transparent criteria and procedures for temporary entry, and the need to ensure border security and to protect the domestic labor force and permanent employment in their respective territories.
2. This Chapter does not apply to measures regarding citizenship, nationality, permanent residence, or employment on a permanent basis.
Article 14.2. General Obligations
1. Each Party shall apply its measures relating to the provisions of this Chapter in accordance with Article 14.1(1) and, in particular, shall apply expeditiously those measures so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.
2. For greater certainty, nothing in this Chapter shall be construed to prevent a Party from applying measures to regulate the entry of natural persons 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 unduly impair or delay trade in goods or services or conduct of investment activities under this Agreement. The sole fact of requiring a visa for natural persons shall not be regarded as unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.
Article 14.3. Grant of Temporary Entry
1. Each Party shall grant temporary entry to business persons who are otherwise qualified for entry under applicable measures relating to public health and safety and national security, in accordance with this Chapter, including the provisions of Annex 14.3.
2. A Party may refuse to issue an immigration document authorizing employment to a business person where the temporary entry of that person might affect adversely:
(a) the settlement of any labor dispute that is in progress at the place or intended place of employment; or
(b) the employment of any person who is involved in such dispute.
3. When a Party refuses pursuant to paragraph 2 to issue an immigration document authorizing employment, it shall:
(a) inform in writing the business person of the reasons for the refusal; and (b) promptly notify the other Party in writing of the reasons for the refusal.
4. Each Party shall limit any fees for processing applications for temporary entry of business persons in a manner consistent with Article 14.2(1).
Article 14.4. Provision of Information
1. Further to Article 20.2 (Publication), each Party shall:
(a) provide to the other Party such materials as will enable it to become acquainted with its measures relating to this Chapter; and
(b) no later than six months after the date of entry into force of this Agreement, prepare, publish, and make available in its own territory, and in the territory of the other Party, explanatory material, including references to applicable laws and regulations, in a consolidated document regarding the requirements for temporary entry under this Chapter in such a manner as will enable business persons of the other Party to become acquainted with them.
2. Each Party shall collect and maintain, and make available upon request to the other Party in accordance with its domestic law, data respecting the granting of temporary entry under this Chapter to business persons of the other Party who have been issued immigration documentation, with a view towards including data specific to each occupation, profession, or activity.
Article 14.5. Committee on Temporary Entry
1. The Parties hereby establish a Committee on Temporary Entry, comprising representatives of each Party, including immigration officials.
2. The Committee shall:
(a) establish a schedule for its meetings;
(b) establish procedures to exchange information on measures that affect the temporary entry of business persons under this Chapter;
(c) consider the development of measures to further facilitate temporary entry of business persons on a reciprocal basis under the provisions of Annex 14.3;
(d) consider the implementation and administration of this Chapter; and
(e) consider the development of common criteria and interpretations for the implementation of this Chapter.
Article 14.6. Dispute Settlement
1. A Party may not initiate proceedings under Article 22.5 (Commission - Good Offices, Conciliation, and Mediation) regarding a refusal to grant temporary entry under this Chapter or a particular case arising under Article 14.2 unless:
(a) the matter involves a pattem of practice; and
(b) the business person has exhausted the available administrative remedies regarding the particular matter.
2. The remedies referred to in paragraph (1)(b) shall be deemed to be exhausted if a final determination in the matter has not been issued by the competent authority within one year of the institution of an administrative proceeding, and the failure to issue a determination is not attributable to delay caused by the business person.
Article 14.7. Relation to other Chapters
1. Except for this Chapter, Chapters One (Initial Provisions), Two (General Definitions), Twenty-One (Administration of the Agreement), Twenty-Two (Dispute Settlement), and Twenty-Four (Final Provisions), and Articles 20.1 (Contact Points), 20.2 (Publication), 20.3 (Notification and Provision of Information), and 20.4 (Administrative Proceedings), no provision of this Agreement shall impose any obligation on a Party regarding its immigration measures.
2. Nothing in this Chapter shall be construed to impose obligations or commitments with respect to other Chapters of this Agreement.
Article 14.8. Transparency In Development and Application of Regulations (1)
1. Further to Chapter Twenty (Transparency), each Party shall establish or maintain appropriate mechanisms to respond to inquiries from interested persons regarding regulations relating to the temporary entry of business persons.
2. Further to Article 20.2 (Publication), to the extent possible, each Party shall, on request, provide to interested persons a concise statement addressing comments received on proposed regulations relating to the temporary entry of business persons at the time that it adopts the final regulations.
3. Further to Article 20.2 (Publication), to the extent possible, each Party shall allow a reasonable period of time between the date it publishes final regulations goveming entry of business persons and the date they take effect.
4. Each Party shall, within a reasonable period after an application requesting temporary entry is considered complete under its domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the Party shall provide, without undue delay, information concerning the status of the application.
Article 14.9. Definitions
For purposes of this Chapter:
business person means a national of a Party who is engaged in trade in goods, the supply of services, or the conduct of investment activities;
immigration measure means any law, regulation, or procedure affecting the entry and sojourn of aliens;
national has the same meaning as the term "natural person who has the nationality of a Party" as defined in Annex 2.1 (Country-Specific Definitions);
professional means a national of a Party who is engaged in a specialty occupation requiring:
(a) theoretical and practical application of a body of specialized knowledge, and
(b) attainment of a post-secondary degree in the specialty requiring four or more years of study (2) (or the equivalent of such a degree) as a minimum for entry into the occupation; and
temporary entry means eniry into the territory of a Party by a business person of the other Party without the intent to establish permanent residence.
Annex 14.3. Temporary Entry for Business Persons
Section A. Business Visitors
1. Each Party shall grant temporary entry to a business person seeking to engage in a business activity set out in Appendix 14.3(A)(1), without requiring that person to obtain an employment authorization, provided that the business person otherwise complies with immigration measures applicable to temporary entry, on presentation of:
(a) proof of nationality of a Party;
(b) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and
(c) evidence demonstrating that the proposed business activity is international in scope and that the business person is not seeking to enter the local labor market.
2. Each Party shall provide that a business person may satisfy the requirements of paragraph 1(c) by demonstrating that:
(a) the primary source of remuneration for the proposed business activity is outside the territory of the Party granting temporary entry; and
(b) the business person-s principal place of business and the actual place of accrual of profits, at least predominantly, remain outside such territory.
A Party shall normally accept an oral declaration as to the principal place of business and the actual place of accrual of profits. Where the Party requires further proof, it shall normally consider a letter from the employer attesting to these matters as sufficient proof.
3. Neither Party may:
(a) as a condition for temporary entry under paragraph 1, require prior approval procedures, petitions, labor certification tests, or other procedures of similar effect; or
(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.
Section B. Traders and Investors
1. Each Party shall grant temporary entry and provide confirming documentation to a business person seeking to:
(a) carry on substantial trade in goods or services principally between the territory of the Party of which the business person is a national and the territory of the other Party into which entry is sought, or
(b) establish, develop, administer, or provide advice or key technical services to the operation of an investment to which the business person or the business personâs enterprise has committed, or is in the process of committing, a substantial amount of capital, in a capacity that is supervisory, executive, or involves essential skills, provided that the business person otherwise complies with immigration measures applicable to temporary entry.
2. Neither Party may:
(a) as a condition for temporary entry under paragraph 1, require labor certification tests or other procedures of similar effect; or
(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.
Section C. Intra-Company Transferees
1. Each Party shall grant temporary entry and provide confirming documentation to a business person employed by an enterprise who seeks to render services to that enterprise or a subsidiary or affiliate thereof, in a capacity that is managerial, executive, or involves specialized knowledge, provided that the business person otherwise complies with immigration measures applicable to temporary entry. A Party may require the business person to have been employed continuously by the enterprise for one year within the three-year period immediately preceding the date of the application for admission.
2. Neither Party may:
(a) as a condition for temporary entry under paragraph 1, require labor certification tests or other procedures of similar effect; or
(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.
Section D. Professionals
1. Each Party shall grant temporary entry and provide confirming documentation to a business person seeking to engage in a business activity as a professional, or to perform training functions related to a particular profession, including conducting seminars, if the business person otherwise complies with immigration measures applicable to temporary entry, on presentation of:
(a) proof of nationality of a Party;
(b) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and
(c) documentation demonstrating the attainment of the relevant minimum educational requirements or altemative credentials.
2. Notwithstanding the educational requirements set out in the definition of "professional" in Article 14.9, each Party shall grant temporary entry to a business person seeking to engage in a business activity as a professional in a profession set out in Appendix 14.3(D\(2), provided that the business person possesses the credentials specified in the Appendix and complies with the requirements of paragraph 1 of this Section.