(c) prevent a Party from prohibiting persons operating private networks from using their private networks to supply public telecommunications networks or services to third persons.
Article 13.2. ACCESS AND USE OF PUBLIC TELECOMMUNICATIONS NETWORKS AND SERVICES (2)
1. Each Party shall ensure that service suppliers of the other Party have access to and use of any public telecommunications network or service, including leased circuits, offered in its territory or across its borders, on reasonable and non-discriminatory terms and conditions, including as set out in paragraphs 2 through 6.
2. Each Party shall ensure that service suppliers of the other Party are permitted to:
(a) purchase or lease and attach terminal or other equipment that interfaces with a public telecommunications network;
(b) provide services to individual or multiple end-users over leased or owned circuits;
(c) connect owned or leased circuits with public telecommunications networks and services or with circuits leased or owned by another enterprise;
(d) perform switching, signaling, processing, and conversion functions; and
(e) use operating protocols of their choice in the supply of any service.
3. Each Party shall ensure that service suppliers of the other Party may use public telecommunications services for the movement of information in its territory or across its borders, including for intra-corporate communications, and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party.
4. Notwithstanding paragraph 3, a Party may take such measures as are necessary to ensure the security and confidentiality of messages, or protect the privacy of non-public personal data of subscribers to public telecommunications services, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks and services, other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks and services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services.
6. Provided that conditions for access to and use of public telecommunications networks and services satisfy the criteria set out in paragraph 5, such conditions may include:
(a) a requirement to use specified technical interfaces, including interface protocols, for interconnection with such networks or services;
(b) requirements, where necessary, for the inter-operability of such networks and services;
(c) type approval of terminal or other equipment that interfaces with the network and technical requirements relating to the attachment of that equipment to such networks; and
(d) a licensing, permit, registration, or notification procedure which, if adopted or maintained, is transparent and provides for the processing of applications filed thereunder in accordance with the Party’s laws or regulations.
Article 13.3. OBLIGATIONS RELATING TO SUPPLIERS OF PUBLIC TELECOMMUNICATIONS SERVICES
Interconnection
1. (a) Each Party shall ensure that suppliers of public telecommunications services in its territory provide, directly, or indirectly within the same territory, interconnection with suppliers of public telecommunications services of the other Party.
(b) In carrying out subparagraph (a), 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 obtained as a result of interconnection arrangements and only use such information for the purposes of providing these services.
(c) Each Party shall provide its telecommunications regulatory body the authority to require suppliers of public telecommunications services to file their interconnection contracts.
Number Portability
2. Each Party shall ensure that suppliers of public telecommunications services in its territory provide number portability to the extent technically feasible, and on reasonable terms and conditions. (3) (4)
Dialing Parity and Access to Telephone Numbers (5)
3. Each Party shall ensure that:
(a) suppliers of public telecommunications services in its territory provide dialing parity within the same category of service to suppliers of public telecommunications services of the other Party; and
(b) suppliers of public telecommunications services of the other Party in the Party’s territory are afforded non-discriminatory access to telephone numbers
Article 13.4. TREATMENT BY MAJOR SUPPLIERS
Each Party shall ensure that a major supplier in its territory accords suppliers of public telecommunications services of the other Party treatment no less favorable than such major supplier accords to itself, its subsidiaries, its affiliates, or non-affiliated service suppliers regarding:
(a) the availability, provisioning, rates, or quality of like public telecommunications services; and
(b) the availability of technical interfaces necessary for interconnection.
(c) not making available, on a timely basis, to suppliers of public telecommunications services, technical information about essential facilities and commercially relevant information that are necessary for them to provide public telecommunications services.
Article 13.5. COMPETITIVE SAFEGUARDS
1. Each Party shall maintain appropriate measures for the purposes of preventing suppliers of public telecommunications services that, alone or together, are a major supplier in its territory from engaging in or continuing anticompetitive practices.
2. The anticompetitive practices referred to in paragraph 1 include in particular:
(a) engaging in anticompetitive cross-subsidization;
(b) using information obtained from competitors with anticompetitive results; and
(c) not making available, on a timely basis, to suppliers of public telecommunications services, technical information about essential facilities and commercially relevant information that are necessary for them to provide public telecommunications services.
Article 13.6. RESALE
Each Party shall ensure that a major supplier in its territory does not impose unreasonable or discriminatory conditions or limitations on the resale of its public telecommunications services. (6)
Article 13.7. UNBUNDLING OF NETWORK ELEMENTS
1. Each Party shall provide its telecommunications regulatory body the authority to require a major supplier in its territory to offer access to network elements on an unbundled basis on terms and conditions, and at cost-oriented rates, that are reasonable, nondiscriminatory, and transparent for the supply of public telecommunications services.
2. Each Party may determine the network elements required to be made available in its territory, and the suppliers that may obtain such elements, in accordance with its laws and regulations.
Article 13.8. INTERCONNECTION
General Terms and Conditions
1. Each Party shall ensure that a major supplier in its territory provides interconnection for the facilities and equipment of suppliers of public telecommunications services of the other Party:
(a) at any technically feasible point in the major supplier’s network;
(b) under non-discriminatory terms, conditions (including technical standards and specifications), and rates;
(c) of a quality no less favorable than that provided by the major supplier for its own like services, for like services of non-affiliated service suppliers, or for its subsidiaries or other affiliates;
(d) in a timely fashion, and on terms and conditions (including technical standards and specifications), and at cost-oriented rates, that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the suppliers need not pay for network components or facilities that they do not require for the service to be provided; and
(e) on request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
Options for Interconnecting with Major Suppliers
2. Each Party shall ensure that a major supplier in its territory provides suppliers of public telecommunications services of the other Party the opportunity to interconnect their facilities and equipment with those of the major supplier through:
(a) negotiation of a new interconnection agreement;
(b) a reference interconnection offer containing the rates, terms, and conditions that the major supplier offers generally to suppliers of public telecommunications services; or
(c) the terms and conditions of an interconnection agreement in force.
Public Availability of Interconnection Offers and Agreements
3. If a major supplier in the territory of a Party has a reference interconnection offer, the Party shall require the offer to be made publicly available.
4. Each Party shall make publicly available the applicable procedures for interconnection negotiations with a major supplier in its territory.
5. Each Party shall require a major supplier in its territory to file all interconnection agreements to which it is party with its telecommunications regulatory body.
6. Each Party shall make publicly available interconnection agreements in force between a major supplier in its territory and other suppliers of public telecommunications services in its territory.
Article 13.9. PROVISIONING AND PRICING OF LEASED CIRCUITS SERVICES (7)
1. Each Party shall ensure that a major supplier in its territory provides enterprises of the other Party leased circuits services that are public telecommunications services on terms and conditions, and at rates, that are reasonable and non-discriminatory.
2. In carrying out paragraph 1, each Party shall provide its telecommunications regulatory body the authority to require a major supplier in its territory to offer leased circuits services that are public telecommunications services to enterprises of the other Party at capacity-based, flat rate, cost-oriented prices.
Article 13.10. CO-LOCATION
1. Subject to paragraphs 2 and 3, each Party shall ensure that a major supplier in its territory provides to suppliers of public telecommunications services of the other Party in the Party’s territory physical co-location of equipment necessary for interconnection or access to unbundled network elements on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory, and transparent.
2. Where physical co-location is not practical for technical reasons or because of space limitations, each Party shall ensure that a major supplier in its territory provides an alternative solution on terms and conditions, and at cost-oriented rates, that are reasonable, nondiscriminatory, and transparent.
3. Each Party may limit which premises are subject to paragraphs 1 and 2, provided the Party specifies any such limitation in its law or regulations.
Article 13.11. ACCESS TO POLES, DUCTS, CONDUITS, AND RIGHTS-OF-WAY (8)
Each Party shall ensure that a major supplier in its territory affords access to poles, ducts, conduits, and rights-of-way owned or controlled by the major supplier to suppliers of public telecommunications services of the other Party in the Party’s territory on terms and conditions, and at rates, that are reasonable, non-discriminatory, and transparent.
Article 13.12. SUBMARINE CABLE SYSTEMS
Each Party shall ensure reasonable and non-discriminatory treatment for access to submarine cable systems (including landing facilities) in its territory to a supplier of public telecommunication services of the other Party, where such supplier of the other Party is authorized to operate a submarine cable system as a public telecommunications service.
Article 13.13. CONDITIONS FOR THE SUPPLY OF INFORMATION SERVICES
1. Neither Party may require an enterprise in its territory that it classifies (9) as a supplier of information services and that supplies those services over facilities that the enterprise does not own, to:
(a) supply those services to the public generally;
(b) cost-justify its rates for those services;
(c) file a tariff for those services;
(d) connect its networks with any particular customer for the supply of those services; or
(e) conform with any particular standard or technical regulation of the telecommunications regulatory body for connecting to any other network, other than a public telecommunications network.
2. Notwithstanding paragraph 1, a Party may take the actions described in paragraph 1 to remedy a practice of a supplier of information services that the Party has found in a particular case to be anticompetitive under its law or regulations, or to otherwise promote competition or safeguard the interests of consumers.
Article 13.14. INDEPENDENT REGULATORY BODIES (10)
Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of public telecommunications services. With a view to ensuring the independence and impartiality of telecommunications regulatory bodies, each Party shall ensure that its telecommunications regulatory body does not hold a financial interest or maintain an operating or management role in any such supplier. Each Party shall ensure that regulatory decisions and procedures, of its telecommunications regulatory body are impartial with the respect to all market participants.
Article 13.15. UNIVERSAL SERVICE
1. Each Party has the right to define the kind of universal service obligation it wishes to adopt or maintain.
2. Such obligations shall not be considered anticompetitive per se, provided they are administered in a transparent, non-discriminatory, and competitively neutral manner and the Party shall ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined.
Article 13.16. LICENSES AND OTHER AUTHORIZATIONS
1. When a Party requires a supplier of public telecommunications services to have a license or other authorization (11) the Party shall make publicly available:
(a) all applicable licensing or authorization criteria and procedures it applies;
(b) the period it normally requires to reach a decision concerning an application for a license or other authorization; and
(c) the terms and conditions of all licenses or authorizations in effect.
2. Each Party shall ensure that, on request, an applicant receives the reasons for the denial of a license or other authorization.
Article 13.17. ALLOCATION AND USE OF SCARCE RESOURCES
1. Each Party shall administer its procedures for the allocation and use of 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 retains the right not to provide detailed identification of frequencies allocated or assigned 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 10.4 (Market Access) either as it applies to cross-border trade in services or through the operation of Article 10.1.3 (Scope) to an investor or covered investment of the other Party. Accordingly, each Party retains the right to establish and apply spectrum and frequency management measures that may have the effect of limiting the number of suppliers of public telecommunications services. This includes the ability to allocate frequency bands, taking into account current and future needs and spectrum availability.
Article 13.18. ENFORCEMENT
Each Party shall provide its competent authority with the authority to enforce the Party’s measures relating to the obligations set out in Articles 13.2 through 13.12. That authority shall include the ability to impose sanctions or other measures which may include financial penalties, injunctive relief (on an interim or final basis), corrective orders, or the modification, suspension, or revocation of licenses or other authorizations.
Article 13.19. RESOLUTION OF TELECOMMUNICATIONS DISPUTES
Further to Articles 18.3 (Administrative Proceedings) and 18.4 (Review and Appeal), each Party shall ensure that:
Recourse
(a) (i) enterprises of the other Party may have recourse in accordance with the procedures established in the legislation to a telecommunications regulatory body or other relevant body of the Party to resolve disputes regarding the Party’s measures relating to matters set out in Articles 13.2 through 13.12; and
(ii) suppliers of public telecommunications 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 requests interconnection, by its telecommunications regulatory body to resolve disputes regarding the terms, conditions, and rates for interconnection with that major supplier;
Judicial Review (12)
(b) any enterprise whose legally protected 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 of the Party.
Article 13.20. TRANSPARENCY
Further to Article 18.1 (Publication), each Party shall ensure that:
(a) rulemakings, including the basis for such rulemakings, of its telecommunications regulatory body and end-user tariffs filed with its telecommunications regulatory body are promptly published or otherwise made publicly available;
(b) interested persons are provided with adequate advance public notice of, and reasonable opportunity to comment on, any rulemaking that its telecommunications regulatory body proposes;
(c) to the extent practicable, all comments filed to the telecommunications regulatory body in the rulemaking are made publicly available; and
(d) its measures relating to public telecommunications services are made publicly available, including:
(i) measures relating to:
(A) tariffs and other terms and conditions of service;
(B) specifications of technical interfaces;
(C) conditions for attaching terminal or other equipment to the public telecommunications network; and
(D) notification, permit, registration, or licensing requirements, if any; and
(ii) procedures relating to judicial and other adjudicatory proceedings.
Article 13.21. MEASURES CONCERNING TECHNOLOGIES AND STANDARDS
Neither Party may 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, subject to requirements necessary to satisfy legitimate public policy interests. (13)
Article 13.22. 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 13.23. DEFINITIONS
For the 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 in accordance with the legislation of the Party;
dialing parity means the ability of an end-user to use an equal number of digits to access a like public telecommunications service, regardless of which public telecommunications services supplier the end-user chooses;
end-user means a final consumer of or subscriber to a public telecommunications service, including a service supplier other than a supplier of public telecommunications services;
enterprise means an enterprise as defined in Article 1.6 (Definitions) and includes a branch of an enterprise;
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 supply a service;
information service means
(a) for Korea, value-added services that add value to telecommunications services through enhanced functionality, and specifically means those services as defined in subparagraph 12 of Article 2 of the Telecommunications Business Act; and
(b) for El Salvador, Honduras, Nicaragua, and Panama, 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 circuits means telecommunications facilities between two or more designated points that are set aside for the dedicated use of, or availability to a particular customer or other users of the customer´s choosing;