Article 9-09. Liberalization of Non-discriminatory Measures.
Each Party may negotiate the liberalization of quantitative restrictions, licensing requirements and other non- discriminatory measures. The Parties shall inscribe the commitments acquired in the Annex to this Article.
Article 9-10. Procedures.
The Parties shall establish procedures for:
(a) a Party to notify the other Party and include in the appropriate annex:
(i) federal or central measures, in accordance with paragraphs 2 and 3 of Article 9-06;
(ii) state or departmental measures, in accordance with paragraph 4 of Article 9-06;
(iii) non-discriminatory quantitative restrictions, in accordance with Article 9-07;
(iv) commitments under Article 9-09; and
(v) modifications to the measures referred to in Article 9-06; and (vi) modifications to the measures referred to in Article 9-09.
(b) the conclusion of future negotiations aimed at perfecting the overall liberalization of services between the Parties, in accordance with Article 9-08.
Article 9-11. Technical Cooperation.
From the entry into force of this Agreement, the Parties shall establish a system to provide service suppliers with information concerning their markets in relation to:
(a) the commercial and technical aspects of the supply of services;
(b) the possibility of obtaining services technology; and
(c) those aspects that the Commission considers relevant on this subject.
Article 9-12. Recognition of Professional Qualifications and Licensing.
1. With a view to ensuring that any measure that a Party adopts or maintains with respect to the requirements and procedures for the granting of licenses and the recognition of qualifications to nationals of the other Party does not constitute an unnecessary barrier to trade, each Party shall endeavor to ensure that such measures:
(a) are based on objective and transparent criteria, such as ability and fitness to provide a service;
(b) are no more burdensome than necessary to ensure the quality of a service; and
(c) do not constitute a disguised restriction on the cross-border provision of a service.
2. Where a Party revalidates, unilaterally or by agreement with another country, licenses or professional qualifications obtained in the territory of the other Party or of any non-Party:
(a) nothing in Article 9-04 shall be construed to require that Party to revalidate studies, licenses or professional qualifications obtained in the territory of the other Party; and
(b) that Party shall provide the other Party with adequate opportunity to demonstrate that studies, licenses or professional qualifications obtained in the territory of that other Party shall also be revalidated, or to negotiate or enter into an agreement having equivalent effect.
3. Each Party shall, within two years of the entry into force of this Agreement, eliminate any nationality or permanent residence requirements it maintains for the licensing of professional service suppliers of the other Party. Where a Party fails to comply with this obligation with respect to a particular sector, the other Party may maintain, in the same sector and for as long as the non-complying Party maintains its requirement, as the sole remedy, a requirement equivalent to that indicated in its Schedule to the Annex to this Article or reinstate:
(a) any such requirement at the federal or central level that it has eliminated under this Article; or
(b) any such requirements at the state or departmental level that had been in effect on entry into force of this Agreement, by notification to the Party in breach.
4. The Annex to this Article sets out procedures for the recognition of education, experience and other standards and requirements governing professional service suppliers.
Article 9-13. Denial of Benefits.
A Party may deny benefits under this Chapter to a service supplier of the other Party, after notification and consultations, where the Party determines that the service is being supplied by an enterprise owned or controlled by persons of a non-Party; and
(a) the enterprise is not engaged in substantial business activities in the territory of any Party; or
(b) the Party denying the benefits:
(i) does not maintain diplomatic relations with the non-Party; and
(ii) adopts or maintains measures with respect to the non-Party that prohibit transactions with that enterprise, or that would be violated or circumvented if the benefits of this Chapter were accorded to that enterprise.
Article 9-14. Other Disciplines.
1. The Commission shall determine the procedures for the establishment of disciplines necessary to regulate:
(a) safeguard measures; and
(b) the imposition of countervailing duties.
2. For the purposes of paragraph 1, the Commission shall monitor the work carried out by the relevant international organizations and, where appropriate, take them into account.
Article 9-15. Relationship with Multilateral Agreements on Services.
1. The Parties undertake to apply among themselves the provisions contained in the multilateral agreements on services to which the Parties are parties.
2. Notwithstanding the provisions of paragraph 1, in the event of incompatibility between the provisions of such agreements and those of this Agreement, the latter shall prevail to the extent of the incompatibility.
Chapter X. Telecommunications
Article 10. Definitions.
For the purposes of this Chapter, the following definitions shall spply:
intracorporative communications: the telecommunications through which a company communicates:
a) internally or with its subsidiaries, branches and subsidiaries as defined by each Party, or between them; or
b) in a non-commercial manner, with all persons of fundamental importance for the economic activity of the company, and who maintain a continuous contractual relationship with it, but does not include telecommunications services that are provided to third parties other than those described;
Authorized equipment: terminal or other equipment that has been approved to connect to the public telecommunications network in accordance with the procedures for assessing the conformity of a Party;
terminal equipment: any digital or analog device capable of processing, receiving, switching, signaling or transmitting signals through electromagnetic means and which is connected to the public telecommunications network at a terminal point;
standardization measure: a "standardization measure", as defined in chapter XIII (Standardization measures);
conformity assessment procedure: a "conformity assessment procedure", as defined in chapter XIll (Standardization measures);
protocol: a set of rules and formats that govern the exchange of information between two peer entities, for purposes of the transfer of information of signals or data;
terminal point of the network: the final demarcation of the public telecommunications network in the user's facilities;
private network: a telecommunications network that establishes a person with its own infrastructure or by leasing channels or circuits of public telecommunications networks for the use of their internal communications or those substantially related to their productive process or services;
public telecommunications network: the physical infrastructure that allows the provision of public telecommunications services;
broadcasting services: the broadcasting services of radio and television programs;
value-added services : telecommunications services that employ computerized processing systems that:
a) act on the format, content, code, protocol or similar aspects of the information transmitted from the user;
b) provide the client with additional, different or restructured information; or
c) involve the user's interaction with stored information;
public telecommunications service : any fixed or mobile telecommunications service that a Party obliges explicitly or in fact, to be offered to the public in general and that, usually, involves the transmission in real time of information provided by the client between two or more points, without change "from point to point" in the form or content of the user's information;
Fixed rate: the pricing based on a fixed amount per period, regardless of the amount of use; telecommunications: the transmission and reception of signals by any electromagnetic means.
Article 10-02. Scope of Application.
1. Recognizing the dual role of telecommunications services, as a specific sector of economic activity and as a means of providing services for other economic activities, this chapter applies to:
a) the measures adopted or maintained by a Party, related to the provision of public telecommunications services;
b) the measures adopted or maintained by a Party, related to access to public telecommunications networks or services and their continuous use by persons of the other Party, including their access and use when operating private networks to carry out intracorporate communications;
c) the measures adopted or maintained by a Party on the provision of value-added services by persons of the other Party in the territory of the first or across its borders;
d) measures relating to standardization with respect to the connection of terminal equipment or other equipment to public telecommunications networks.
2. Nothing in this chapter shall be construed as:
a) compel any Party to authorize a person of the other Party to establish, build, acquire, lease, operate or supply telecommunications networks or services;
b) compel any Party to establish, build, acquire, acquire, lease, operate or supply public telecommunications networks or services that are not offered to the general public;
c) allow a Party to require a person to establish, build, acquire, lease, operate or supply public telecommunications networks or services that are not offered to the general public;
d) prevent any Party from prohibiting persons operating private networks from using these networks to supply public telecommunications networks or services to third parties; or
e) compel a Party to require any person who broadcasts or distributes by cable television or radio programs, to offer its broadcasting or cable facilities as a public telecommunications network.
3. Notwithstanding the provisions of paragraph 2, in case of emergency, the operators of the telecommunications services of the Parties shall collaborate with the authorities in the transmission of the communications they require, fora prudential period of time.
Article 10-03. Access to Public Telecommunications Networks and Services and Their Use.
1. Each Party shall ensure that any person of the other Party has access to and can make use of any public telecommunications network or service, including leased private circuits, offered in its territory or cross-border on reasonable terms and conditions and non-discriminatory, for the conduct of their business, as specified in paragraphs 2 to 8.
2. Subject to the provisions of paragraphs 7 and 8, each Party shall ensure that the persons of the other Party are allowed to:
a) purchase or lease and connect the terminal equipment or other equipment that interfaces with the public telecommunications network, which does not technically affect that network or degrade it;
b) interconnect private networks, leased or owned, with public telecommunications networks in that Party's territory or across its borders, including access by direct dialing to its users or customers and from them, or with leased or proprietary circuits another person, on terms and conditions mutually accepted by those persons, in accordance with the provisions in force in each Party;
c) perform switching, signaling and processing functions; AND d) use the operating protocols they choose.
3. Each Party shall endeavor to:
a) the pricing for public telecommunications services reflects the economic costs directly related to the provision of those services; and
b) Leased private circuits are available on the basis of a fixed fee or described by the tariff mechanism in force in each Party.
4. Nothing in paragraph 3 shall be interpreted as preventing cross subsidies between public telecommunications services.
5. Each Party shall ensure that persons of the other Party may use public telecommunications networks or services to transmit information in its territory or across its borders, including for intra- corporate communications and for access to information contained in databases or stored in any other form that is readable by a machine in the territory of any Party.
6. The Parties may adopt any measure necessary to ensure the confidentiality and security of the messages and the protection of the privacy of the subscribers of public telecommunications networks or services.
7. Each Party shall ensure that no more conditions are imposed on access to and use of public telecommunications networks or services than those necessary to:
a) safeguard the responsibilities of the public service of providers of public telecommunications networks or services, in particular their ability to make their networks or services available to the general public; or
b) protect the technical integrity of networks or public telecommunications services.
8. Provided that the conditions for access to public telecommunications networks or services and their use comply with the guidelines established in paragraph 7, those conditions may include:
a) Restrictions on the resale or shared use of such services;
b) requirements to use specific technical interfaces, including interface protocols for interconnection with the aforementioned networks or services;
c) restrictions on the interconnection of private, leased or owned circuits with the aforementioned networks or services, or with leased or owned circuits of another person, which are used for the supply of public telecommunications networks or services;
d) procedures for granting concessions, licenses, permits or registrations that, if adopted or maintained, are transparent and whose application process is resolved expeditiously; and
e) restrictions on use in situations that endanger national security due to activities related to drug trafficking or other illicit activities.
Article 10-04. Conditions for the Provision of Value-added Services.
1. Considering the strategic role of value-added services to increase the competitiveness of all economic activities, the Parties establish the necessary conditions for their provision, taking into account the procedures and information required for this purpose.
2. Each Party shall ensure that:
a) any procedure adopted or maintained to grant permits or registrations regarding the provision of value-added services is transparent and non-discriminatory and that requests are processed expeditiously; and
b) the information required under these procedures is limited to that necessary to prove that the applicant has the financial and technical capacity to initiate the provision of the service, or that the services or terminal equipment or other equipment of the applicant comply with the measures of applicable standardization of the Party.
3. No Party may require a provider of value-added services:
a) provide these services to the general public, when they have been hired by specific users or oriented to them under defined technical conditions;
b) justify your rates according to your costs;
c) interconnect your networks with any particular client or network; or
d) satisfy any particular standardization measure, for an interconnection other than interconnection with a public telecommunications network.
4. Each Party may require the registration of fees to:
a) a service provider, in order to correct a practice of this provider that the Party, in accordance with its legislation, has considered, in a particular case, as contrary to competition; or
b) a monopoly to which the provisions of article 10-06 apply.
Article 10-05. Standardization Measures.
1. Each Party shall ensure that its standardization measures that relate to the connection of terminal equipment or other equipment to public telecommunications networks, including those measures that relate to the use of test and measurement equipment for the evaluation procedure of the conformity, are adopted or maintained only to the extent necessary for:
a) avoid technical damage to public telecommunications networks;
b) avoid technical interference with public telecommunications services or their deterioration;
c) avoid electromagnetic interference and ensure compatibility with other uses of the electromagnetic spectrum;
d) prevent billing equipment from malfunctioning; or
e) guarantee the user's security and access to public telecommunications networks or services.
2. The Parties may establish the approval requirement for the connection of terminal equipment or other equipment that is not authorized to the public telecommunications network, provided that the approval criteria are compatible with the provisions of paragraph 1.
3. Each Party shall ensure that terminal points of public telecommunications networks are defined on a reasonable and transparent basis.
4. Telecommunications, based on the criteria established in paragraph 1, neither Party shall require additional authorization for the equipment that is connected to the consumer's side.
5. Each Party:
a) ensure that its conformity assessment procedures are transparent and non-discriminatory and that requests submitted for this purpose are processed expeditiously;
b) the required testing of terminal equipment or other equipment that is to be connected to public telecommunications networks, in accordance with the Party's conformity assessment procedures, subject to the Party's right to review the accuracy and integrity of test results; AND
c) ensure that measures adopted or maintained to authorize persons acting as agents of suppliers of telecommunications equipment before the competent bodies of conformity assessment of the Party are not discriminatory.
6. Not later than two years from the entry into force of this Agreement, each Party shall adopt, as part of its conformity assessment procedures, the necessary provisions to accept the results of the tests, based on its measures and procedures, carried out by the laboratories that are in the territory of the other Party.
7. The Telecommunications Subgroup established in accordance with numeral iii) of letter a) of Article 13-17 (Working Group on Standardization Measures) will be responsible for implementing the guidelines contained in this chapter, ina manner consistent with the corresponding provisions of chapter XIll (Standardization measures).
Article 10-06. Monopolies.
1. When a Party maintains or establishes a monopoly to provide public telecommunications networks and services and the monopoly competes, directly or through subsidiaries, in the manufacture or sale of telecommunications goods, in the provision of value-added services or other services of telecommunications, the Party shall ensure that the monopoly does not use its monopolistic position to engage in anti-competitive practices in those markets, either directly or through dealings with its subsidiaries, in a manner that disadvantageously affects a person of the other party. These practices may include cross subsidies, predatory behavior and discriminatory access to networks and public telecommunications services.
2. Each Party shall introduce or maintain effective measures to prevent the anti-competitive conduct referred to in paragraph 1, such as:
a) accounting requirements;
b) structural separation requirements;
c) rules to ensure that the monopoly grants its competitors access to its networks or telecommunications services and their use, in terms and conditions no less favorable than those granted to itself or its subsidiaries; or
d) rules to ensure timely disclosure of the technical changes of public telecommunications networks and their interfaces.
3. The Parties shall exchange information on the measures referred to in paragraph 2 in a timely manner.
Article 10-07. Relationship with International Organizations and Agreements.
1. the Parties Shall Endeavor to Stimulate the Role of Regional and Subregional Organizations and Promote Them as Forums to Promote the Development of Telecommunications In the Region.
2. The Parties, recognizing the importance of international standards for achieving global compatibility and interoperability of telecommunications networks or services, undertake to apply those standards through the work of relevant international organizations, such as the International Telecommunication Union and the International Organization for Standardization.
Article 10-08. Technical Cooperation and other Consultations.
In order to stimulate the development of interoperable telecommunications infrastructure and services, the Parties will cooperate in the exchange of technical information, in the development of the sector's human resources, and in the creation and implementation of business exchange programs, academic and intergovernmental. The Parties establish the High Level Technical Group, constituted by representatives of the pertinent entities and in charge of implementing the obligations arising from this paragraph. This Group will be installed no later than six months after the entry into force of this Agreement.
Article 10-09. Transparency.
In addition to the provisions of Article 17-02 (Publication), each Party shall make available to the public and to the other Party the measures relating to access to public telecommunications networks or services and their use, including measures regarding:
a) rates and other terms and conditions of service;
b) specifications of the technical interfaces with these services and networks;
c) information on the bodies responsible for the preparation and adoption of standardization measures that affect such access and use;
d) conditions applicable to the connection of terminal or other equipment to the public telecommunications network; and
e) concession, permit, registration or license requirements.
Article 10-10. Relationship with other Chapters.
In case of incompatibility between a provision of this chapter and another chapter, that of this chapter shall prevail to the extent of the incompatibility.