Article 11.10. Universal Service
Each Party has the right to define the type of universal service obligations it wishes to adopt or maintain and shall administer such obligations in a transparent, non-discriminatory, and competitively neutral manner, and shall ensure that universal service obligations are no more burdensome than necessary for the type of universal service that has been defined.
Article 11.11. Network Neutrality
In order to guarantee a free and competitive market for Internet content, the Parties undertake to study mechanisms to give effect to the principle of net neutrality in their domestic legislation, so as to prevent certain content or applications from being discriminated against in favor of others.
Article 11.12. Competitive Safeguards
1. Each Party shall maintain appropriate measures with the objective of preventing suppliers, individually or jointly, from employing or continuing to employ anti-competitive practices.
2. The anticompetitive practices referred to in paragraph 1 include, in particular:
(a) employ anti-competitive cross-subsidies;
(b) using information obtained from competitors with anticompetitive results, and
(c) failure to make available in a timely manner to other suppliers of public telecommunications services, technical information on essential facilities and commercially relevant information needed by them to supply public telecommunications services.
Article 11.13. Treatment of Significant Suppliers
Each Party shall ensure that major suppliers in its territory accord to telecommunications service suppliers of the other Party treatment no less favorable than that accorded by such major suppliers, in like circumstances, to their subsidiaries, their affiliates or non-affiliated service suppliers, with respect to:
(a) the availability, supply, rates or quality of similar telecommunications services; and
(b) the availability of technical interfaces necessary for interconnection.
Article 11.14. Resale
1. Each Party, in accordance with its domestic legislation, shall ensure that major suppliers in its territory:
(a) offer for resale, at reasonable rates, to telecommunications service suppliers of the other Party, telecommunications services that such major suppliers supply at retail to end-users, and
(b) do not impose discriminatory or unjustified conditions or limitations on the resale of such services.
2. A Party may determine reasonable rates through any methodology it deems appropriate.
3. A Party may prohibit a reseller that obtains, at wholesale rates, a public telecommunications service that is available at the retail level only to a limited category of users from offering such service to a different category of user.
Article 11.15. Disaggregation of Network Elements
1. Each Party shall give its telecommunications regulatory body the authority to require that major suppliers in its territory provide to telecommunications service suppliers of the other Party access to network elements on an unbundled basis on terms, conditions and rates that are cost-oriented, reasonable, non-discriminatory and transparent. For Brazil, cost orientation is one of the options allowed by its telecommunications regulations, without prejudice to other criteria.
2. Each Party may determine the network elements required to be available in its territory and the providers that may obtain such elements, in accordance with its legal system.
Article 11.16. Supply and Pricing of Leased Circuits
1. Each Party shall ensure that major suppliers in its territory supply leased circuits to enterprises of the other Party on terms, conditions and rates that are reasonable and non-discriminatory.
2. For purposes of paragraph 1, each Party shall give its telecommunications regulatory body the authority to require major suppliers in its territory to offer leased circuits to the other Party's companies at capacity-based, cost-oriented prices. For Brazil, cost orientation is one of the options allowed by its telecommunications regulations, without prejudice to other criteria.
Article 11.17. Co-location
1. Each Party shall ensure that major suppliers in its territory provide to telecommunications service suppliers of the other Party the physical co-location of equipment necessary to interconnect or access unbundled network elements on terms, conditions and rates that are cost-oriented, reasonable, non-discriminatory and based on generally available supply. For Brazil, cost orientation is one of the options allowed by its telecommunications regulations, without prejudice to other criteria.
2. Where physical co-location is not practicable for technical reasons or due to space limitations, each Party shall ensure that major suppliers in its territory provide an alternative solution, such as facilitating virtual co-location, on terms, conditions and cost-oriented tariffs that are reasonable, non-discriminatory and based on a generally available offer. For Brazil, cost orientation is one of the options allowed by its telecommunications regulations, without prejudice to other criteria.
3. Each Party may determine, in accordance with its legal system, the facilities subject to paragraphs 1 and 2.
Article 11.18. Access to Poles, Ducts, Pipelines and Rights-of-Way
Each Party shall ensure that major suppliers in its territory provide access to its owned or controlled poles, ducts, conduits and rights-of-way by such major suppliers to suppliers of public telecommunications services of the other Party on terms, conditions and rates that are reasonable and non-discriminatory.
Article 11.19. Independent Regulatory Bodies
1. Each Party shall ensure that its telecommunications regulatory body is independent and separate from, and not accountable to, any supplier of public telecommunications services. For these purposes, each Party shall ensure that its telecommunications regulatory body has no financial interest in, and no operational role in, any supplier of telecommunications services.
2. Each Party shall ensure that the decisions and procedures of its telecommunications regulatory body are impartial with respect to all market participants. For these purposes, each Party shall ensure that any financial interest it has in a telecommunications service supplier does not influence the decisions and procedures of its telecommunications regulatory body.
3. Neither Party shall accord to a supplier of telecommunications services treatment more favorable than that accorded to a like supplier of the other Party on the ground that the supplier receiving the more favorable treatment is owned in whole or in part by the national government of either Party.
Article 11.20. Mutual and Technical Cooperation
The regulatory agencies of the Parties shall cooperate in:
(a) the exchange of experiences and information on telecommunications policy, regulation and standards;
(b) the promotion of training opportunities by the competent telecommunication authorities for the development of specialized skills;
(c) coordinating and seeking common positions, to the extent possible, in the various international organizations in which they participate, and
(d) the exchange of information on strategies to enable access to telecommunications services in rural areas and priority attention zones established by each Party.
Article 11.21. Authorizations or Licenses
1. Where a Party requires an authorization or license, as appropriate, from a telecommunications service supplier, it shall make such authorization or license publicly available:
(a) the criteria and procedures applicable to the granting thereof;
(b) the period of time normally required to make a decision on such a request, and
(c) the terms and conditions of any authorization it has issued.
2. Each Party shall ensure that, upon request, an applicant receives the reasons for the denial of a qualification.
Article 11.22. Allocation, Allocation and Use of Scarce Resources
1. Each Party shall administer its 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 those related to governmental uses.
2. Each Party shall make available to the public the current status of allocated frequency bands, but shall not be required to provide detailed identification of frequencies allocated for specific governmental uses.
3. Measures of the other Party relating to spectrum allocation and assignment and frequency management do not per se constitute measures inconsistent with Article 6.5 (Market Access), which applies to cross-border trade in services under Article 11.2. Accordingly, each Party retains the right to establish and apply its spectrum and frequency management policies, which may have the effect of limiting the number of suppliers of telecommunications services, provided that this is done in a manner consistent with this Agreement. Each Party also retains the right to allocate and assign frequency bands taking into account present and future needs and spectrum availability.
4. When assigning spectrum for non-government telecommunications services, each Party shall endeavor to rely on an open and transparent public process that considers the public interest. Each Party shall endeavor to rely, in general, on market-based approaches in assigning spectrum for terrestrial non-government telecommunications services.
Article 11.23. Transparency
Each Party shall ensure that:
(a) the regulation of the telecommunications regulatory body, including the considerations for such regulation, be promptly published or made available to the public;
(b) interested persons are afforded, to the extent possible, by public notice, with adequate advance notice, the opportunity to comment on any regulation proposed by the telecommunications regulatory body;
(c) user fees are made available to the public, and
(d) measures relating to public telecommunications networks and services are made available to the public, including measures relating to:
(i) rates and other terms and conditions of service;
(ii) specifications of the technical interfaces;
(iii) the conditions for the connection of terminal equipment or any other equipment to the public telecommunications network;
(iv) notification requirements or authorizations, if any;
(v) standardization or standards affecting access and use, and
(vi) the procedures related to the resolution of telecommunication disputes referred to in Article 11.28.
Article 11.24. Quality of Service
1. Each Party shall establish measures to regulate, monitor and control the quality of telecommunications services with the indicators, parameters and procedures established by its telecommunications regulatory body.
2. Each Party shall ensure that, to the extent information is available, users have access to telecommunications service quality indicators.
3. Each Party shall provide, at the request of another Party, the methodology used for the calculation or measurement of the quality of service indicators, as well as the goals that have been defined for their compliance, in accordance with its domestic legislation.
Article 11.25. International Roaming
1. Within one (1) year from the entry into force of this Agreement, the international roaming service between service suppliers providing mobile telephony telecommunications and mobile data transmission services under this Chapter shall be governed by the following provisions.
2. The suppliers referred to in paragraph 1 shall apply to their users who use international roaming services in the territory of the other Party, the same rates or prices that they charge for mobile services in their own country, according to the modality contracted by each user.
3. Therefore, such rates or prices shall be applied to the following cases:
(a) when a user of a provider in Brazil is in Chile and originates voice and messaging communications to Brazil or Chile and receives voice and messaging communications from Chile or Brazil;
(b) when a user of a provider in Chile is located in Brazil and originates voice and messaging communications to Chile or Brazil and receives voice and messaging communications from Chile or Brazil;
(c) when a user of a provider of one Party accesses data services (Internet access) while roaming internationally in the territory of the other Party.
4. Each Party shall adopt or maintain measures to:
(a) ensure that the information on tariffs or retail prices referred to in paragraph 2 is easily accessible to the public;
(b) minimize impediments or barriers to the use of technological alternatives to international roaming, allowing users of the other Party, visiting its territory, to access telecommunications services using the devices of their choice, and
(c) implement mechanisms whereby telecommunications service providers allow international roaming users to control their data, voice and text message (Short Message Service, or "SMS") consumption.
5. Each Party shall ensure that its providers offer international roaming users regulated by this Article the same quality of service as its domestic users.
6. The Parties shall monitor compliance with the provisions of this Article, in accordance with their domestic legislation.
7. The Undersecretariat of Telecommunications, or its successor, for the Republic of Chile and the Agência Nacional de Telecomunicações (ANATEL), or its successor, for the Federative Republic of Brazil, shall coordinate the simultaneous implementation of this Article.
Article 11.26. Flexibility In the Choice of Technologies
1. No Party may prevent telecommunications service suppliers from having the flexibility to choose the technologies they wish to use for the supply of their services, subject to the requirements necessary to satisfy legitimate public policy interests.
2. When a Party finances the development of advanced networks, it may condition its financing on the use of technologies that meet its specific public policy interests.
Article 11.27. Protection of Users of Telecommunication Services
The Parties shall guarantee the following rights to users of telecommunications services:
(a) to obtain the supply of telecommunication services in accordance with the quality parameters contracted or established by the competent authority, and
(b) in the case of persons with disabilities, to obtain information on the rights they enjoy. The Parties shall use the means available for this purpose.
Article 11.28. Telecommunication Dispute Resolution
Each Party shall ensure that:
Resources
(a) the enterprises of the other Party may have recourse to the telecommunications regulatory body or other competent body to resolve disputes relating to domestic measures relating to the matters dealt with in this Chapter;
(b) suppliers of telecommunications services of another Party that have requested interconnection from a supplier in the territory of the Party may apply to the telecommunications regulatory body or other competent body, within a specific reasonable and public time period following the supplier's request for interconnection, to resolve disputes regarding the terms, conditions and rates for interconnection with such supplier;
Reconsideration
(c) any enterprise that is aggrieved or whose interests are adversely affected by a determination or decision of the national telecommunications regulatory body may petition such body to reconsider such determination or decision. No Party shall allow such a request to be a basis for non-compliance with the determination or decision of the telecommunications regulatory body, unless a competent authority suspends such determination or decision. A Party may limit the circumstances in which reconsideration is available, in accordance with its legal system;
Judicial Review
(d) any enterprise that is aggrieved or whose interests have been adversely affected by a resolution or decision of the national telecommunications regulatory body may obtain a judicial review of such resolution or decision by an independent judicial authority. An application for judicial review shall not constitute grounds for non-compliance with such resolution or decision, unless stayed by the competent judicial body.
Article 11.29. Relationship to other Chapters
In the event of any inconsistency between this Chapter and another chapter of this Agreement, this Chapter shall prevail to the extent of the inconsistency.
Chapter 12. Public Procurement
Article 12.1. Definitions
For the purposes of this Chapter:
common goods and services means goods and services of simple and objective specification whose performance and quality standards, for example, can be defined in the bidding documents by means of the usual market specifications, which leads to less effort in the preparation of bids;
special compensatory conditions means any conditions or commitments that promote local development or improve the balance of payments accounts of a Party, such as local content requirements, technology licensing, investment requirements, compensatory trade or similar measures or requirements;
direct contracting means a method of procurement in which the procuring entity contacts directly a supplier or suppliers of its choice;
contracting entity means an entity of a Party listed in Annex I;
written or in writing means any expression in words or numbers that can be read, reproduced and subsequently communicated. It may include information transmitted and stored electronically;
technical specification means a bidding requirement that:
(a) establish the characteristics of:
(i) the goods to be acquired, including quality, performance, safety and dimensions, or the processes and methods for their production, or
(ii) services to be contracted or the processes or methods for their provision, including any applicable administrative provisions, or
(b) understands the terminology, symbols, packaging, marking and labeling requirements as they apply to the good or service, or
(c) establishes conformity assessment procedures prescribed by a contracting entity;
open bidding means a procurement method in which all interested suppliers may submit a bid;
selective bidding means a method of procurement in which only suppliers that satisfy the conditions for participation are invited by the procuring entity to submit proposals;
multiple-use list means the list of suppliers that the procuring entity has determined satisfy the conditions for participation in that list and that the procuring entity intends to use more than once;
measure means any law, regulation, guideline, administrative procedure or act, requirement or practice relating to covered procurement;
person means a natural person or a legal entity;
natural person of the other Party means a natural person who is a national of the other Party or who, under the law of the other Party, has the right of permanent residence in that other Party;
legal entity means any legal entity duly organized or otherwise organized under applicable law, whether or not for profit and whether privately or publicly owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
legal person of the other Party means a legal person that is constituted or otherwise organized under the law of the other Party and that, in the case of the supply of a service, is engaged in substantive business operations in the territory of that Party;
supplier means a person who provides or could provide goods or services to a procuring entity;
services include construction services, unless otherwise specified;
construction service means a service the purpose of which is the performance, by whatever means, of a civil engineering or construction work, on the basis of division 51 of the United Nations Provisional Central Product Classification;
Article 12.2. Scope and Coverage
Scope of Application
1. This Chapter applies to any measure adopted by the Parties relating to covered procurement.
2. For purposes of this Chapter, covered procurement is defined as the procurement of goods, services, or any combination thereof, as specified by each Party in Annex I:
(a) that is not intended for commercial sale or resale, or as an input in the production or supply of goods or services for the same purpose;
(b) The Company's financial statements are prepared in accordance with the provisions of the Mexican Securities Market Law and are presented in accordance with the provisions of the Mexican Securities Market Law and the Mexican Securities Market Law;
(c) whose value is equal to or greater than the relevant threshold value specified for each Party in Annex I;
(d) by a contracting entity listed in Annex I, and
(e) that is not otherwise excluded from the scope of this Chapter.
Exclusions
3. Except as otherwise provided, this Chapter does not apply to:
(a) the acquisition or lease of land, existing buildings or other real estate or rights to such property;
(b) non-contractual arrangements, or any form of assistance provided by a Party, including cooperation agreements, grants, loans, subsidies, equity contributions, guarantees, warranties, guarantees and tax incentives;
(c) the contracting or procurement of fiscal agency services or depository services, settlement and management services for regulated financial institutions, nor services related to the sale, redemption and distribution of public debt, including loans and bonds, notes, and other public securities. For greater certainty, this Chapter does not apply to government procurement of banking, financial or specialized services relating to public borrowing or public debt management activities;
(d) public employment contracts and related measures;
(e) procurement by a procuring entity or enterprise of a Party from another procuring entity or government enterprise of the same Party;
(f) financial services;
(g) the contracting performed:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) in accordance with a particular procedure or condition of an international agreement relating to:
(A) the settlement of troops;
(B) the joint execution of a project of the signatory countries of such agreement, or
(C) in accordance with the particular procedures or conditions of an international organization, or financed by donations, loans or other forms of international assistance, when the applicable procedure or condition is incompatible with this Chapter.
Valuation