(c) Public Availability of Interconnection Offers
Each Party shall provide its telecommunications regulatory body the authority to require major suppliers in its territory to make publicly available reference interconnection offers or other standard interconnection offers containing the rates, terms, and conditions that the major suppliers offer generally to suppliers of public telecommunications services.
(d) Public Availability of the Procedures for Interconnection Negotiations
Each Party shall make publicly available the applicable procedures for interconnection negotiations with major suppliers in its territory.
(e) Public Availability of Interconnection Agreements Concluded with Major Suppliers
(i) Each Party shall require major suppliers in its territory to file all interconnection agreements to which they are party with its telecommunications regulatory body or other relevant body.
(ii) Each Party shall make publicly available interconnection agreements in force between major suppliers in its territory and other suppliers of public telecommunications services in its territory.
Provisioning and Pricing of Leased Circuits Services
6. (a) A Party shall ensure that major suppliers in its territory provide enterprises of the other Party leased circuits services that are public telecommunications services on terms, conditions, and at rates that are reasonable and non-discriminatory.
(b) In carrying out subparagraph (a), a Party shall provide its telecommunications regulatory body the authority to require major suppliers in its territory to offer leased circuits services that are public telecommunications services to enterprises of the other Party at flat rate, cost-oriented prices.
Co-location
7. (a) Subject to subparagraphs (b) and (c), a Party shall ensure that major suppliers in its territory provide to suppliers of public telecommunications services of the other Party physical co-location of equipment necessary for interconnection on terms, conditions, and at cost-oriented rates that are reasonable, non-discriminatory, and transparent.
(b) Where physical co-location is not practical for technical reasons or because of space limitations, each Party shall ensure that major suppliers in its territory:
(i) provide an alternative solution, or
(ii) facilitate virtual co-location in its territory, on terms, conditions, and at cost-oriented rates that are reasonable, non-discriminatory, and transparent.
(c) Each Party may specify in its law or regulations which premises are subject to subparagraphs (a) and (b).
Access to Rights-of-Way
8. A Party shall ensure that major suppliers in its territory afford access to their poles, ducts, conduits, and rights-of-way which are bulletined as network bottleneck facilities to suppliers of public telecommunications services of the other Party on terms, conditions, and at rates that are reasonable and non-discriminatory
Article 13.05. Conditions for the Supply of Information Services
1. No Party may require an enterprise in its territory that it classifies (9) as a supplier of information services and that supplies such services over facilities that it does not own to:
(a) supply such services to the public generally;
(b) cost-justify its rates for such services;
(c) file a tariff for such services for approval;
(d) interconnect its networks with any particular customer for the supply of
such services; or
(e) conform with any particular standard or technical regulation for interconnection other than for interconnection to a public telecommunications network.
2. Notwithstanding paragraph 1, a Party may take the actions described in subparagraphs (a) through (e) to remedy a practice of a supplier of information services that the Party has found in a particular case to be anti-competitive under its law or regulations, or to otherwise promote competition or safeguard the interests of consumers.
Article 13.06. Independent Regulatory Bodies and Government-Owned Telecommunications Suppliers (10)
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.
3. No Party may accord more favorable treatment to a supplier of public telecommunications services or to a supplier of information services than that accorded to a like supplier of the other Party on the ground that the supplier receiving more favorable treatment is owned, wholly or in part, by the national government of the Party.
Article 13.07. 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 13.08. Licenses and other Authorizations
1. Where a Party requires a supplier of public telecommunications services to have a license, concession, permit, registration, or other type of authorization, the Party shall make publicly available:
(a) all applicable licensing or authorization criteria and procedures it applies;
(b) the time it normally requires to reach a decision concerning an application for a license, concession, permit, registration, or other type of authorization; and
(c) the terms and conditions of all licenses or authorizations it has issued.
2. Each Party shall ensure that, on request, an applicant receives the reasons for the denial of a license, concession, permit, registration, or other type of authorization.
Article 13.09. 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 shall not be required to provide detailed identification of frequencies allocated for specific government uses.
3. For greater certainty, a Party's measures regarding the allocation and assignment of spectrum and regarding frequency management are not measures that are per se inconsistent with Article 11.04 (Market Access), which is applied to Chapter 10 (Investment) through Article 11.01 (Scope and Coverage). Accordingly, each Party retains the right to establish and apply its spectrum and frequency allocation and management policies, which may limit the number of suppliers of public telecommunications services, provided that it does so in a manner that is consistent with this Agreement. Each Party also retains the right to allocate frequency bands taking into account present and future needs.
Article 13.10. Enforcement
Each Party shall provide its competent authority with the authority to establish and enforce the Partyâs measures relating to the obligations set out in Articles 13.02 through 13.05. 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 or other authorizations.
Article 13.11. Resolution of Domestic Telecommunications Disputes
Further to Articles 20.04 (Administrative Proceedings) and 20.05 (Review and Appeal), each Party shall ensure the following:
Recourse to Telecommunications Regulatory Bodies
(a) (i) A Party shall ensure that enterprises of the other Party may seek review by a telecommunications regulatory body or other relevant body to resolve disputes regarding the Party's measures relating to a matter set out in Articles 13.02 through 13.05.
(ii) A Party shall ensure that 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 available period of time after the supplier requests interconnection, by a telecommunications regulatory body to resolve disputes regarding the terms, conditions, and rates for interconnection with such major supplier.
Reconsideration
(b) Each Party shall ensure that any enterprise that is aggrieved or whose interests are adversely affected by a determination or decision of the Party's telecommunications regulatory body may petition the body to reconsider that determination or decision. No Party may permit such a petition to constitute grounds for non-compliance with the determination or decision of the telecommunications regulatory body unless an appropriate authority stays such determination or decision.
Judicial Review
(c) Each Party shall ensure that any enterprise that is aggrieved or whose interests are adversely affected by a determination or decision of the Party's telecommunications regulatory body may obtain judicial review of such determination or decision by an independent judicial authority.
Article 13.12. Transparency
Further to Articles 20.02 (Publication) and 20.03 (Notification and Provision of Information), 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 the opportunity to comment on, any rulemaking that its telecommunications regulatory body proposes; and
(c) its measurees relating to public telecommunications 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) bodies responsible for preparing, amending, and adopting standards-related measures affecting access and use;
(v) conditions for attaching terminal or other equipment to the public telecommunications network; and
(vi) notification, permit, registration, or licensing requirements, if any.
Article 13.13. Flexibility In the Choice of Technologies
No Party may prevent suppliers of public telecommunications services from having the flexibility to choose the technologies that they use to supply their services, including commercial mobile wireless services, subject to requirements necessary to satisfy legitimate public policy interests.
Article 13.14. Forbearance
The Parties recognize the importance of relying on market forces to achieve wide choices in the supply of telecommunications services. To this end, each Party may forbear from applying a regulation to a 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 between suppliers of public telecommunications services.
Article 13.15. Standards-Related Measures
1. Each Party shall ensure that its standards-related measures relating to the attachment of terminal or other equipment to the public telecommunications networks, including those measures relating to the use of testing and measuring equipment for conformity assessment procedures, are adopted or maintained only to the extent necessary to:
(a) prevent technical damage to public telecommunications networks;
(b) prevent technical interference with, or degradation of, public telecommunications networks or services;
(c) prevent electromagnetic interference, and ensure compatibility, with other uses of the electromagnetic spectrum;
(d) prevent billing equipment malfunction;
(e) ensure users' safety and access to public telecommunications networks or services; or
(f) ensure electromagnetic spectrum's efficiency.
2. A Party may require approval for the attachment to the public telecommunications network of terminal or other equipment that is not authorized, provided that the criteria for that approval are consistent with paragraph 1.
3. Each Party shall ensure that the network termination points for its public telecommunications networks are defined on a reasonable and transparent basis.
4. Neither Party may require separate authorization for equipment that is connected on the customer's side of authorized equipment that serves as a protective device fulfilling the criteria of paragraph 1.
5. Each Party shall:
(a) ensure that its conformity assessment procedures are transparent and non-discriminatory and that applications filed thereunder are processed expeditiously;
(b) permit any technically qualified entity to perform the testing required under the Party's conformity assessment procedures for terminal or other equipment to be attached to the public telecommunications network, subject to the Party's right to review the accuracy and completeness of the test results; and
(c) ensure that any measure that it adopts or maintains requiring to be authorized to act as agents for suppliers of telecommunications equipment before the Party's relevant conformity assessment bodies is non-discriminatory.
6. When the condition allows it, each Party shall adopt, as part of its conformity assessment procedures, provisions necessary to accept the test results from laboratories or testing facilities in the territory of the other Party for tests performed in accordance with the accepting Party's standards-related measures and procedures.
Article 13.16. Technical Cooperation and other Consultations
1. To encourage the development of interoperable telecommunications services infrastructure, the Parties shall cooperate in the exchange of technical information, the development of government-to-government training programs and other related activities.
2. The Parties shall consult with a view to determining the feasibility of further liberalizing trade in all telecommunications services, including public telecommunications networks and services.
Article 13.17. 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 13.18. Definitions
For purposes of this Chapter:
authorized equipment means terminal or other equipment that has been approved for attachment to the public telecommunications transport network in accordance with a Party's conformity assessment procedures;
commercial mobile services means public telecommunications services supplied through mobile wireless means;
conformity assessment procedure means any procedure used, directly or indirectly, to determine that a technical regulation or standard is fulfilled, including sampling, testing, inspection, evaluation, verification, assurance of conformity, registration, accreditation and approval as well as their combinations, including the procedures referred to in Annex 13.15;
cost-oriented (11) 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 an end-user to use an equal number of digits to access a like public telecommunications service, regardless of the public telecommunications service supplier chosen by such end-user;
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 2.01 (Definitions of General Application), and includes a branch of an enterprise;
essential facilities means facilities of a public telecommunications network or service that:
(a) are exclusively or predominantly supplied 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 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;
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;
network termination point means the final demarcation of the public telecommunications network at the customer's premises;
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, telephone numbers without impairment of quality, reliability, or convenience when switching between 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 supplier to supply public telecommunications services;
public telecommunications networks means public telecommunications infrastructure which permits telecommunications between an among defined network termination points
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, but does not include information services;
reference interconnection offer means an interconnection offer extended by a major supplier and filed with or approved by a telecommunications regulatory body 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;
standardization measures means the rules, technical regulations or procedures for conformity assessment;
telecommunications means the transmission and reception of signals by any electromagnetic means, including by photonic means;
telecommunications regulatory body means a national body responsible for the regulation of telecommunications;
terminal equipment means any analog or digital device capable of processing, receiving, switching, signaling or transmitting signals by electromagnetic means and that is connected by radio or wire to a public telecommunications transport network at a termination point; and
user means an end-user or a supplier of public telecommunications services.
Chapter 14. Electronic Commerce
Article 14.01. General
1. 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 WTO rules to measures affecting electronic commerce.
2. For greater certainty, nothing in this Chapter shall be construed to prevent a Party from imposing internal taxes, directly or indirectly, on digital products, provided they are imposed in a manner consistent with this Agreement.
Article 14.02. Electronic Supply of Services
For greater certainty, the Parties affirm that measures affecting the supply of a service using electronic means fall within the scope of the obligations contained in the relevant provisions of Chapters 10 (Investment), 11 (Cross-Border Trade in Services), and 12 (Financial Services), subject to any exceptions or non-conforming measures set out in this Agreement, which are applicable to such obligations.
Article 14.03. Digital Products
1. No Party may impose customs duties, fees, or other charges on or in connection with the importation or exportation of digital products by electronic transmission.
2. For purposes of determining applicable customs duties, each Party shall determine the customs value of an imported carrier medium bearing a digital product based on the cost or value of the carrier medium alone, without regard to the cost or value of the digital product stored on the carrier medium.
3. No Party may accord less favorable treatment to some digital products transmitted electronically than it accords to other like digital products transmitted electronically:
(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 outside its territory; or
(ii) the author, performer, producer, developer, or distributor of such digital products is a person of the other Party or non-Party; or
(b) so as otherwise to afford protection to the other like digital products that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in its territory. (1)
4. No Party may accord less favorable treatment to digital products transmitted electronically:
(a) that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party than it accords to like digital products transmitted electronically that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of a non-Party; or
(b) whose author, performer, producer, developer, or distributor is a person of the other Party than it accords to like digital products transmitted electronically whose author, performer, producer, developer, or distributor is a person of a non-Party.
5. Paragraphs 3 and 4 do not apply to any non-conforming measure described in Articles 10.13 (Non-Conforming Measures), 11.07 (Non-Conforming Measures), or 12.09 (Non- Conforming Measures).