Article 14.10. Resale
Each Party shall ensure that major providers in its territory:
(a) Offer for resale, at reasonable rates,(8) to providers of public telecommunications services, public telecommunications services that such major providers supply at retail rates to end users, and
(b) Do not impose discriminatory or unjustified conditions or limitations on the resale of such services. (9)
Article 14.11. Unbundling of Network Elements
1. Each Party shall grant its telecommunications regulatory agency the authority to require that major providers in its territory supply access to unbundled network elements to providers of public telecommunications services, on terms, conditions and at cost-based rates that are reasonable, non-discriminatory and transparent.
2. Each Party may determine if the network elements that are required are available in its territory and the providers that may obtain such elements, pursuant to its laws and regulations.
Article 14.12. Leased Circuit Supply and Pricing
1. Each Party shall ensure that major providers in its territory provide enterprises from other Parties with leased circuits that are public telecommunications services offered on terms, conditions and at rates that are reasonable and non-discriminatory.
2. In order to comply with paragraph 1, each Party shall grant its telecommunications regulatory agency the authority to require major providers in its territory to offer enterprises of other Parties leased circuits at cost-based rates based on capacity.
Article 14.13. Co-location
1. Each Party shall ensure that major providers in its territory offer to providers of public telecommunications services of other Parties, the physical co-location of equipment necessary for interconnecting or accessing unbundled network elements, on terms, conditions and at cost-based rates that are reasonable, non-discriminatory and based on a generally available offer.
2. When physical co-location is not practical for technical reasons or due to space restrictions, each Party shall ensure that the major providers in its territory offer an alternative solution, such as facilitating virtual co-location, on terms and conditions and at cost-based rates that are reasonable, non-discriminatory and based on a generally available offer.
3. Each Party may determine, pursuant to its laws and regulations, the facilities subject to paragraphs 1 and 2.
Article 14.14. Access to Poles, Ducts, Conduits and Rights of Way (10) (11)
Each Party shall ensure that major providers in its territory provide access to poles, ducts, conduits and rights of way that are owned or controlled by such major providers to providers of public telecommunications services of other Parties on terms and conditions and at rates which are reasonable and non-discriminatory.
Article 14.15. Independent Regulatory Agencies
1. Each Party shall ensure that its telecommunications regulatory agency is independent and distinct from any public telecommunications service provider and not answerable to any of them. To this end, each Party shall ensure that its telecommunications regulatory agency does not hold financial interests or operational functions in any public telecommunications services provider.
2. Each Party shall ensure that the decisions and procedures made by its telecommunications regulatory agency are impartial with respect to all market participants. To this end, each Party shall ensure that any financial interest held by this agency in a public telecommunications service provider does not influence the decisions and procedures of the telecommunications regulatory agency.
3. No Party shall accord a provider of public telecommunications services a more favourable treatment than that accorded to a like provider of the other Parties, based on the justification that the provider that receives the most favourable treatment is totally or partially owned by the national government of any of the Parties.
Article 14.15 bis. Mutual and Technical Cooperation
The Parties shall cooperate In:
(a) the exchange of experience and information on telecommunications policy, regulation and standards;
(b) the promotion of training facilities by the competent telecommunications authorities for the development of specialised skills; and
(c) the exchange of information on strategies to enable access to telecommunications services in rural areas and priority service areas established by each Party.
Article 14.16. Authorisations
1. Where a Party requires a provider of public telecommunications services to obtain authorisation, the Party shall make publicly available:
(a) The criteria and procedures which apply to the granting of said authorisation;
(b) The normal timeframe required for making a decision on said application for authorisation, and
(c) The terms and conditions attached to any authorisation granted.
2. Each Party shall ensure, on request, that an applicant is informed of the reasons for an authorisation being denied.
Article 14.17. Allocation, Assignment and Use of Scarce Resources
1. Each Party shall administrate its own procedures for the allocation, assignment and use of scarce telecommunications resources including frequencies, numbers and rights of way in an objective, timely, transparent and non-discriminatory manner, except for scarce resources related to governmental use.
2. Each Party shall make the current status of frequency bands assigned publicly available but it shall not be compelled to provide detailed identification of the frequencies allocated specifically for governmental use.
3. The measures of a Party concerning the allocation and assignment of the spectrum and the management of frequencies, do not in themselves constitute measures that are inconsistent with Article 9.6 (Access to Markets), which concerns cross-border trade in services and Chapter 10 pursuant to the provisions of Article 9.2 (Scope of Application). Accordingly, each Party retains the right to establish and apply its own policies on spectrum and frequency management, which may entail limiting the number of providers of public telecommunications services, provided that this is carried out in a way that is consistent with this Additional Protocol. Each Party also retains the right to allocate and assign frequency bands taking into consideration their present and future needs and the availability of the spectrum.
4. Where the spectrum for non-governmental telecommunications services is allocated, each Party shall seek to promote an open and transparent public comment process, which it considers in the public interest. Each Party shall seek, in general, to take a market-based approach to the assignment of the spectrum for non-governmental land-based telecommunications services.
Article 14.18. Universal Service
Each Party has the right to define the type of universal service obligations it wishes to adopt or maintain and it shall administrate said obligations in a transparent, non-discriminatory and
competitively neutral manner, ensuring that universal service obligations are not more burdensome than is necessary for the type of universal service that has been defined.
Article 14.19. Transparency
In addition to Chapter 15 (Transparency), each Party shall ensure that:
(a) The regulations of the telecommunications regulatory agency are promptly published or made public, including the basis for such regulations;
(b) Interested persons are granted the opportunity, insofar as possible, through public announcement, with advance notice, to comment on any regulations proposed by the telecommunications regulatory agency;
(c) The prices for end users are made public, and
(d) The measures related to public telecommunications networks and services are made public, including those related to:
(i) Rates and other terms and conditions of the service;
(ii) Specifications of the technical interfaces;
(iii) Conditions for the connection of the terminal equipment or any other equipment to the public telecommunications network;
(iv) Requirements for notification or authorisations, where applicable;
(v) The standardisation or standards that affect access and use, and
(vi) Procedures related to the resolution of telecommunications disputes, as described in Article 14.22.
Article 14.19 bis. Quality of Service
1. Each Party shall establish measures to regulate, monitor, and oversee the quality of public telecommunications services using the indicators, parameters, and procedures established for this purpose by its telecommunications regulatory body.
2. Each Party shall ensure that
(a) suppliers of public telecommunications services, in its territory, or
(b) its telecommunications regulatory body,
publish indicators of the quality of service provided to end-users of public telecommunications services.
3. Each Party shall provide, on request of another Party, the methodology used for the calculation or measurement of the quality of service indicators, as well as the targets set for their achievement, in accordance with its law.
Article 14.20. International Roaming
1. The Parties shall seek to cooperate in promoting transparent and reasonable rates for international mobile roaming services.
2. Each Party shall adopt or maintain measures to:
(a) ensure that information on retail rates for international mobile roaming services is readily available to the public;
(b) remove impediments or barriers to the use of technological alternatives to roaming that allow consumers of other Parties visiting their territory to access telecommunications services using the devices of their choice; and
(c) implement mechanisms by which providers of public telecommunications services allow users of international roaming to control their data, voice and Short Message Service (SMS) consumption.
3. In furtherance of paragraph 2(a), each Party shall ensure that:
(a) suppliers of public telecommunications services in its territory, or
(b) its regulatory body,
make available to the public the retail rates for international mobile international roaming services, in respect of voice, data and text messaging.
4. The Parties shall evaluate the adoption of joint actions aimed at reducing international roaming charges between the Parties.
5. The Parties shall jointly assess the possibility of establishing mechanisms to regulate the international wholesale roaming services offered between the Parties for voice, data and messaging services.
Article 14.21. Flexibility In Technology Choice
No Party may prevent public telecommunications service providers from freely choosing the technologies they wish to employ for their supply of services, subject to the requirements necessary to satisfy the legitimate interests of public policy.
Article 14.21 bis. Protection of End-Users of Telecommunications Services
The Parties shall ensure the following rights to end-users of telecommunications services:
(a) to obtain the supply of telecommunications services in accordance with the quality standards contracted for or established by the competent authority; and
(b) in the case of persons with disabilities, to obtain information on the rights to which they are entitled. The Parties shall use the means available to them for this purpose.
Article 14.22. Resolution of Telecommunications Disputes
Each Party shall ensure that:
Resources
(a) the enterprises of the other Parties may have recourse to the telecommunications regulatory body or other competent body to resolve disputes regarding the Party's measures relating to the matters set forth in Articles 14.3, 14.4, 14.5, 14.6, and 14.7 through 14.14;
(b) The providers of public telecommunications services of another Party that have requested interconnection from a major provider in the territory of the other Party, may appeal to the telecommunications regulatory agency, within a reasonable and specific timeframe of public knowledge following the suppliers request for interconnection, in order that it may resolve the disputes related to the terms, conditions and rates for interconnection with said major provider;
Reconsideration
(c) Any enterprise that is disadvantaged or whose interests are adversely affected by a resolution or decision issued by the telecommunications regulatory agency of a Party may request said agency to reconsider (12),(13) said resolution or decision. No Party shall permit such request to be the grounds for non-compliance of the resolution or decision issued by the telecommunications regulatory agency, unless a competent authority suspends such resolution or decision. (14) A Party may limit the circumstances in which reconsideration is available, pursuant to its laws and regulations;
Judicial Review
(d) Any company which is disadvantaged or whose interests have been adversely affected by a resolution or decision issued by the telecommunications regulatory agency of a Party, may be granted a judicial review of said resolution or decision from an independent judicial authority. The request for judicial review shall not constitute the grounds for non-compliance of said resolution or decision, unless it is suspended by the competent judicial body.
Article 14.23. Relation to other Chapters
In the event of inconsistency between this Chapter and another Chapter of this Additional Protocol, this Chapter shall prevail to the extent of the inconsistency.
Chapter 15 bis. REGULATORY IMPROVEMENT
Article 15 bis.1. Definitions
For the purposes of this Chapter:
regulatory measures means those measures of general application, related to any subject matter covered by this Additional Protocol, adopted by regulatory authorities and with which compliance is mandatory, and
covered regulatory measures means those regulatory measures determined by each Party to be covered by this Chapter in accordance with Article 15 bis.3.
Article 15 bis.2. General Provisions
1. For purposes of this Chapter, regulatory reform refers to the use of international good regulatory practices in the process of planning, drafting, promulgating, implementing, and reviewing regulatory measures in order to facilitate the achievement of national public policy objectives, and to efforts by governments to enhance regulatory cooperation for the purpose of achieving such objectives, as well as to promote international trade, investment, economic growth, and employment.
2. The Parties affirm the importance of:
(a) maintaining and enhancing the benefits of the integration promoted through this Additional Protocol through regulatory improvements, facilitating increased trade in goods and services, as well as investment between the Parties;
(b) the sovereign right of each Party to identify its regulatory priorities and to establish and implement regulatory improvement measures that take into account such priorities, in such areas and at such levels of government as that Party considers appropriate;
(c) the sovereign right of each Party to establish such regulations as it considers appropriate;
(d) the role of regulation in achieving public policy objectives;
(e) consider the input of interested persons in the development of proposed regulatory measures;
(f) the development of international regulatory cooperation; and
(g) cooperation between the Parties for the development of regulatory reform policy, as well as for capacity building and strengthening in this field.
Article 15 bis.3. Scope of Application
Each Party shall, no later than three years after the entry into force of the First Amending Protocol to the Additional Protocol to the Framework Agreement of the Pacific Alliance (hereinafter referred to as the "First Amending Protocol"), determine and make publicly available the covered regulatory measures to which the provisions of this Chapter shall apply, in accordance with its law. In making such determination, each Party shall consider achieving meaningful coverage.
Article 15 bis.4. Establishment of Coordination and Review Mechanisms or Processes Review
1. The Parties recognise that regulatory reform can be fostered through the establishment of internal mechanisms to facilitate interagency coordination associated with the processes for the development and review of covered regulatory measures. Accordingly, each Party shall endeavour to ensure that mechanisms or processes are in place to facilitate effective interagency coordination and review of draft or proposed covered regulatory measures. To this end, each Party shall endeavour to consider establishing and maintaining a coordinating body or mechanism at the national or central level.
2. The Parties recognise that while the mechanisms or processes referred to in paragraph 1 may vary according to their respective circumstances, including differences in levels of development and in political and institutional structures, they should generally be set out in documents that include a description of these and that can be made publicly available. These mechanisms or processes should have features such as the ability to:
(a) review draft or proposed covered regulatory measures to determine whether international good regulatory practices, which may include but are not limited to those set out in Article 15 bis.5, were taken into consideration in their preparation, and make recommendations based on such review;
(b) strengthen coordination and consultation among national governmental institutions to identify possible duplication, and avoid creating inconsistent requirements among them;
(c) make recommendations in order to promote regulatory improvements in a systematic manner; and
(d) ensure that the review is carried out in a timely manner.
(d) report publicly on the regulatory measures covered that have been reviewed and any proposals for systematic regulatory improvements, as well as updates on changes to processes and mechanisms.
Article 15 bis.5. Promotion of Good Regulatory Practices
1. Each Party should encourage its competent regulatory authorities, in accordance with its legislation, to conduct regulatory impact assessments when developing draft or proposed covered regulatory measures that exceed the economic impact threshold or, where appropriate, other criteria established by that Party, to assist them in designing regulatory measures that best meet that Party's objective. Regulatory impact assessments may include a variety of procedures to determine potential impacts.
2. Recognising that differences in the institutional, social, cultural, legal and developmental circumstances of the Parties may result in specific regulatory approaches, regulatory impact assessments should, inter alia:
(a) assess the need for a draft or proposed covered regulatory measure, including a description of the nature and importance of the problem;
(b) outline possible alternatives, including, to the extent feasible and in accordance with their respective legislation, the costs and benefits involved, recognising that some of these may be difficult to quantify;
(c) explain the reasons for concluding that the selected alternative meets the public policy objectives in an efficient manner, including, where appropriate, reference to the costs and benefits, as well as the ability to manage the risks; and
(d) be based on the best available scientific, technical, economic or other relevant information available to the respective regulatory authorities within their competence, mandate, capabilities and resources.
3. When conducting regulatory impact assessments, regulatory authorities may take into account the potential impact of the regulatory proposal on micro, small and medium-sized enterprises.
4. Each Party should encourage its competent regulatory authorities, when developing covered regulatory measures, to consider the regulatory measures of other Parties, as well as relevant developments in regional, international and other fora, to the extent appropriate and consistent with its law.
5. Each Party shall endeavour to ensure that the new regulatory measures covered are clearly written, concise, organised and easy to understand, recognising that some measures involve technical issues, which may require specialised knowledge to understand and apply.
6. Each Party shall endeavour to ensure that its competent regulatory authorities, in accordance with its law, facilitate public access to information on new regulatory measures covered and, where possible, make such information available on a website.
7. Each Party shall endeavour to review its covered regulatory measures, at such intervals as it considers appropriate, to determine whether they should be amended, expanded, simplified or repealed, with the objective of making that Party's regulatory regime more effective in achieving its public policy objectives.
8. Each Party should publish annually a notice, in a manner it considers appropriate and consistent with its law, of any covered regulatory measures that it expects its regulatory authorities may issue or amend during the following 12 months.
Article 15 bis.6. Regulatory Improvement Committee
1. The Parties hereby establish a Regulatory Improvement Committee (hereinafter referred to as the "Committee"), which shall be composed of representatives of the Parties.
2. The Committee shall meet within one year of the entry into force of the First Modifying Protocol and thereafter as deemed necessary by the Parties. Meetings of the Committee may be held in person or by any technological means agreed by the Parties. The Committee may conduct its work through any means agreed by the Parties, including meetings in the margins of other regional or international fora.
3. The Committee shall take its decisions by consensus.
4. The Committee shall consider issues relating to the implementation of this Chapter. It shall also consider the identification of future priorities, including possible sectoral initiatives and cooperative activities, involving issues relating to this Chapter and to better regulation issues covered by other Chapters of this Additional Protocol.
5. The Committee shall evaluate the relevance of incorporating future work on additional practices and tools on regulatory reform, such as training in regulatory reform skills; transparency and access to regulations; formal public consultation processes; electronic systems to facilitate the interaction of regulatory authorities with entrepreneurs, business people and the public in general; rationalisation of the regulatory inventory and the measurement of administrative burdens, among others that it considers relevant.
6. In the process of identifying future priorities, the Committee shall take into account the activities of other committees and other bodies established under the Additional Protocol and shall coordinate with them in order to avoid duplication of activities.
7. The Committee shall ensure that its work on regulatory cooperation provides additional value to ongoing initiatives in other relevant fora, in order to avoid impinging on or duplicating such efforts.
8. At least once every three years after the date of entry into force of the First Amending Protocol, the Committee shall consider developments in the areas of international good regulatory practice, as well as the experiences of the Parties in implementing this Chapter, with a view to considering whether to make recommendations to the Free Trade Commission for the improvement of the provisions of this Chapter, and to enhance the benefits of this Additional Protocol.
9. Each Party shall, upon entry into force of the First Amending Protocol, notify to the other Parties a contact point. Such contact point shall provide information relating to the implementation of this Chapter upon request of another Party.
Article 15 bis.7. Cooperation
1. The Parties shall cooperate in order to properly implement this Chapter and to maximise the benefits derived from this Chapter. Cooperative activities shall take into account the needs of each Party, and may include:
(a) exchange of information, dialogues or meetings between the Parties, with interested persons, including micro, small and medium-sized enterprises;
(b) exchange of information, dialogue or meetings with non-Parties, international organisations and interested persons, including micro, small and medium-sized enterprises of non-Parties;
(c) training programmes, seminars and other assistance initiatives;
(d) the strengthening of cooperation and other relevant activities between regulatory authorities; and
(e) other activities as the Parties may agree.
2. The Parties recognise that regulatory cooperation between them may be enhanced, inter alia, by ensuring that each Party's regulatory measures are made available centrally.