(c) Each Party may determine through its law or regulations which premises are subject to subparagraphs (a) and (b).
Poles, Ducts, and Conduits
8. Each Party shall ensure that a major supplier in its territory affords access to poles, ducts, and conduits to suppliers of public telecommunications services of the other Party on terms and conditions, and at rates, that are reasonable, nondiscriminatory, and transparent.
Article 12.5. Submarine Cable Systems
Each Party shall ensure that any supplier that it authorizes to operate a submarine cable system in its territory as a public telecommunications service accords reasonable and non-discriminatory treatment with respect to access to that system (including landing facilities) to suppliers of public telecommunications services.
Article 12.6. Conditions for the Supply of Value-added Services
1. Neither Party may require an enterprise in its territory that it classifies as a supplier of value-added services and that supplies those services to facilities that it 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) interconnect its networks with any particular customer for the supply of those 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 paragraph 1 to remedy a practice of a supplier of value-added 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 12.7. Independent Regulatory Bodies and Government Ownership
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. Neither Party may accord more favorable treatment to a supplier of public telecommunications services or to a supplier of value-added services in its territory than that accorded to a like supplier of the other Party on the basis that the supplier receiving more favorable treatment is owned by the national government of the Party.
4. Each Party shall maintain the absence of or eliminate as soon as feasible national government ownership in any supplier of public telecommunications services. Where a Party has an ownership interest in a supplier of public telecommunications services and intends to reduce or eliminate its interest, it shall notify the other Party of its intention as soon as possible.
Article 12.8. 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 12.9. Licensing Process
1. When a Party requires a supplier of public telecommunications services to have a license, the Party shall make publicly available:
(a) all the licensing criteria and procedures it applies;
(b) the period it normally requires to reach a decision concerning an application for a license; and
(c) the terms and conditions of all licenses it has issued.
2. Each Party shall ensure that, on request, an applicant receives the reasons for its denial of a license.
Article 12.10. 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, (8) 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 10.4 (Market Access). 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 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.
Article 12.11. Enforcement
Each Party shall provide its competent authority the authority to enforce the Party's measures relating to the obligations set out in Articles 12.2 through 12.5. 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 12.12. Resolution of Telecommunications Disputes
Further to Articles 17.3 (Administrative Proceedings) and 17.4 (Review and Appeal), each Party shall ensure the following:
Recourse to Telecommunications Regulatory Bodies
(a) enterprises may seek review by 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 12.2 through 12.5; and
(b) 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 (9) to resolve disputes regarding the terms, conditions, and rates for interconnection with such major supplier; and
Review and Appeal
(c) any enterprise that is aggrieved or whose interests are adversely affected by a determination or decision of its telecommunications regulatory body may obtain review of the determination or decision by an independent judicial authority or other independent tribunal.
Article 12.13. Transparency of Measures Relating to Telecommunications
Further to Article 17.1 (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 available to all interested persons;
(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 measures 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) conditions for attaching terminal or other equipment to the public telecommunications network; and
(v) notification, permit, registration, or licensing requirements, if any.
Article 12.14. Flexibility In the Choice of Technologies
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.
Article 12.15. Forbearance
1. The Parties recognize the importance of relying on competitive market forces to provide wide choice in the supply of telecommunications services. To this end, each Party may forbear, to the extent provided for in its law, 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 the regulation is not necessary to prevent unreasonable or discriminatory practices;
(b) enforcement of the 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.
2. For greater certainty, each Party shall subject its regulatory body's decision to forebear to judicial review in accordance with subparagraph (c) of Article 12.12.
Article 12.16. 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 12.17. Definitions
For purposes of this Chapter:
co-location (physical) means physical access to space in order to install, maintain, or repair equipment, at premises owned or controlled and used by a supplier to supply public telecommunications services;
co-location (virtual) means the ability to lease and control equipment of a supplier of public telecommunications services for the purpose of interconnecting with that supplier or accessing its unbundled network elements;
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 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 final subscriber to a public telecommunications service;
enterprise means an "enterprise" as defined in Article 1.3 (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;
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 user;
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 that 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, the same telephone numbers without impairment of quality, reliability, or convenience when switching between the same category of suppliers of public telecommunications services;
public telecommunications service (10) means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information, and excludes value-added services;
reference interconnection offer means an interconnection offer extended by a major supplier and filed with or approved by a telecommunications regulatory body (11) 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;
service supplier of the other Party means, with respect to a Party, a person that is either a BIT investment in the territory of the Party or a person of the other Party and that seeks to supply or supplies services in or into the territory of the Party, and includes a supplier of public telecommunications services;
telecommunications means the transmission and reception of signals by any electromagnetic means, including by photonic means;
telecommunications regulatory body means a national body responsible for the regulation of telecommunications;
user means a service consumer or a service supplier; and
value-added services means services that add value to telecommunications services through enhanced functionality. In the United States, these are services as defined in 47 U.S.C. ยง 153(20).
ANNEX 12-A.
Paragraphs 2 and 3 of Article 12.3 do not apply to the United States with respect to suppliers of commercial mobile services. In addition, a state regulatory authority of the United States may exempt a rural local exchange carrier, as defined in Section 251(f)(2) of the Communications Act of 1934, as amended, from the obligations contained in paragraphs 2 and 3 of Article 12.3.
ANNEX 12-B.
1. Article 12.4 does not apply to the United States with respect to a rural telephone company, as defined in section 3(37) of the Communications Act of 1934, as amended, unless a state regulatory authority orders that the requirements described in that Article be applied to the company. In addition, a state regulatory authority may exempt a rural local exchange carrier, as defined in section 251(f)(2) of the Communications Act of 1934, as amended, from the obligations contained in Article 12.4.
2. Paragraphs 3 through 8 of Article 12.4 do not apply to the United States with respect to suppliers of commercial mobile services
Chapter Thirteen. Electronic Commerce
Article 13.1. General
The Parties recognize the economic growth and opportunity that electronic commerce provides, the importance of avoiding barriers to its use and development, and the applicability of the WTO Agreement to measures affecting electronic commerce.
Article 13.2. Electronic Supply of Services
For greater certainty, the Parties affirm that measures affecting the supply of a service using electronic means are subject to the obligations contained in the relevant provisions of Chapters Ten (Cross-Border Trade in Services) and Eleven (Financial Services), subject to any exceptions or non-conforming measures set out in the Agreement that are applicable to such obligations.
Article 13.3. Customs Duties
1. Neither Party may impose customs duties, fees, or other charges (1) on or in connection with the importation or exportation of digital products by electronic transmission.
2. Each Party shall determine the customs value of an imported carrier medium bearing a digital product of the other Party 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.
Article 13.4. Non-discriminatory Treatment of Digital Products
1. Neither Party may accord less favorable treatment to some digital products than it accords to other like digital products:
(a) on the basis that
(i) the digital products receiving less favorable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms 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.
2. Neither Party may accord less favorable treatment to digital products:
(a) 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 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 whose author, performer, producer, developer, or distributor is a person of a non-Party.
3. Paragraphs 1 and 2 do not apply to any non-conforming measure described in Articles 10.6 (Non-Conforming Measures) and 11.9 (Non-Conforming Measures).
Article 13.5. Definitions
For the purposes of this Chapter:
carrier medium means any physical object capable of storing a digital product, by any existing method or method later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, and includes an optical medium, a floppy disk, and a magnetic tape;
digital products means computer programs, text, video, images, sound recordings, and other products that are digitally encoded, (2) regardless of whether they are fixed on a carrier medium or transmitted electronically;
electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means; and
using electronic means means employing computer processing.
Chapter Fourteen. Intellectual Property Rights
Article 14.1. General Provisions
1. Each Party shall, at a minimum, give effect to this Chapter.
International Agreements and Recommendations
2. Each Party shall ratify or accede to the following agreements:
(a) the Patent Cooperation Treaty (1970), as amended in 1979;
(b) the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
(c) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);
(d) the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980;
(e) the International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention);
(f) the Trademark Law Treaty (1994);
(g) the WIPO Copyright Treaty (1996); and (h) the WIPO Performances and Phonograms Treaty (1996).
3. Each Party shall make best efforts to ratify or accede to the following agreements: (a) the Patent Law Treaty (2000); and (b) the Hague Agreement Concerning the International Registration of Industrial Designs (1999).
More Extensive Protection and Enforcement
4. A Party may implement in its domestic law more extensive protection and enforcement of intellectual property rights than is required under this Chapter, provided that such protection and enforcement does not contravene this Chapter. National Treatment
5. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals (1) of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection (2) and enjoyment of such intellectual property rights and any benefits derived from such rights.
6. A Party may derogate from paragraph 5 in relation to its judicial and administrative procedures, including any procedure requiring a national of the other Party to designate for service of process an address in its territory or to appoint an agent in its territory, provided that such derogation: (a) is necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and (b) is not applied in a manner that would constitute a disguised restriction on trade.
7. Paragraph 5 does not apply to procedures provided in multilateral agreements concluded under the auspices of the World Intellectual Property Organization in relation to the acquisition or maintenance of intellectual property rights.
Application of Agreement to Existing Subject Matter and Prior Acts
8. Except as otherwise provided in this Chapter, including Article 14.4.5, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement that is protected on that date in the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under the terms of this Chapter.
9. Except as otherwise provided in this Chapter, including Article14.4.5, a Party shall not be required to restore protection to subject matter, that on the date of entry into force of this Agreement has fallen into the public domain in the Party where the protection is claimed.
10. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.
Transparency
11. Further to Article 17.1 (Publication), each Party shall ensure that all laws, regulations, and procedures concerning the protection or enforcement of intellectual property rights are in writing and are published, (3) or where such publication is not practicable, made publicly available, in a national language in such a manner as to enable governments and right holders to become acquainted with them, with the object of making the protection and enforcement of intellectual property rights transparent.
Article 14.2. Trademarks, Including Geographical Indications
1. Neither Party may require, as a condition of registration, that signs be visually perceptible and neither Party may deny registration of a trademark solely on the grounds that the sign of which it is composed is a sound or that the sign includes a scent.
2. Each Party shall provide that trademarks shall include certification marks. Each Party shall also provide that signs that may serve, in the course of trade, as geographical indications may constitute certification or collective marks. (4)
3. Each Party shall ensure that its measures mandating the use of the term customary in common language as the common name for a good ("common name") including, inter alia, requirements concerning the relative size, placement or style of use of the trademark in relation to the common name, do not impair the use or effectiveness of trademarks used in relation to such good.