Chapter 9: Telecommunications

Article 9.1: Definitions

For the purposes of this Chapter:

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;

cross-connect links means the links in a submarine cable landing station used to connect submarine cable capacity to the transmission, switching or routing equipment of any supplier of telecommunications services co-located in that submarine cable landing station;

end-user means a final consumer or subscriber, including a service supplier, to whom a public telecommunications service is supplied, other than for use in the further supply of a public telecommunications service;

essential facilities means facilities of a telecommunications network or service that:

are exclusively or predominantly provided by a single or limited number of suppliers; and
cannot feasibly be economically or technically substituted in order to supply a service;

interconnection¹ means linking with suppliers providing telecommunications networks or 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;

international mobile roaming service means a commercial mobile service provided pursuant to a commercial agreement between suppliers of public telecommunications services that enables end-users to use their home mobile handset or other device for voice, data or messaging services while outside the Area in which the end-user's home public telecommunications network is located;

leased circuit means a telecommunications facility between two or more designated points that is set aside for the dedicated use of, or availability to, a user;

licence means any authorisation that a Party may require of a person, in accordance with its laws and regulations, in order for such person to offer a telecommunications service, including concessions, permits, registrations or notifications;

major supplier means a supplier of telecommunications services that has the ability to materially affect the terms of participation, having regard to price and supply, in the relevant market for telecommunications services as a result of:

control over essential facilities; or
use of its position in the market;

network element means a facility or equipment used in supplying a telecommunications service, including features, functions and capabilities provided by means of that facility or equipment;

non-discriminatory means treatment no less favourable than that accorded to any other user of like telecommunications services in like circumstances, including with respect to timeliness;

number portability means the ability of end-users to retain existing telephone numbers when switching between suppliers of like public telecommunications services;

public telecommunications network means the telecommunications infrastructure which is used to provide public telecommunications services between and among defined network termination points;

public telecommunications service means any telecommunications service that is 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;

reference interconnection offer means an interconnection offer extended by a major supplier and filed with, approved by or determined by a telecommunications regulatory body that sufficiently details the terms, rates and conditions for interconnection so that a supplier of telecommunications services that is willing to accept the offer may obtain interconnection with the major supplier on that basis, without having to engage in negotiations with the major supplier concerned;

standard interconnection offer means an interconnection offer extended by a major supplier, which is neither filed with nor approved by a telecommunications regulatory body, but is published and sufficiently details the terms, rates and conditions for interconnection so that a supplier of telecommunications services that is willing to accept the offer may obtain interconnection with the major supplier on that basis, without having to engage in negotiations with the major supplier concerned;

submarine cable landing station means the premises where interconnection takes place with the submarine cable system, as determined by the telecommunications regulatory body, if required;

telecommunications means the transmission and reception of signals by any electromagnetic means;

telecommunications regulatory body² means a body or bodies responsible for the regulation of telecommunications;

user means a service consumer or a service supplier;and

wholesale telecommunications service means a telecommunications service, or a service that facilitates the supply of a telecommunications service, supplied by a supplier of telecommunications services to another supplier of telecommunications services, in order for that supplier to provide public telecommunications services to end-users.

Article 9.2: Scope

This Chapter shall apply to measures adopted or maintained by a Party affecting trade in telecommunications services.
This Chapter shall not apply to any measure relating to broadcast or cable distribution of radio or television programming, except that:
1. Article 9.4 shall apply with respect to a cable or broadcast service supplier's access to and use of public telecommunications services; and
2. Article 9.9 shall apply to any technical measure to the extent that the measure also affects telecommunications services.
This Chapter shall not apply to any measure relating to private telecommunications networks or services.
Nothing in this Chapter shall be construed to:
1. require a Party, or require a Party to compel any enterprise, to establish, construct, acquire, lease, operate or provide a telecommunications network or service which is not offered as a wholesale telecommunications service or public telecommunications network or service³;
2. require a Party to compel any enterprise exclusively engaged in the broadcast or cable distribution of radio or television programming to make available its broadcast or cable facilities as a public telecommunications network; or
3. prevent a Party from prohibiting a person who operates a private network from using its private network to supply a wholesale telecommunications service or public telecommunications network or service to third persons.
For greater certainty, this Chapter does not prohibit a Party from requiring an enterprise to obtain a licence to supply any telecommunications service within its Area.

Article 9.3: Approaches to Regulation

The Parties recognise the value of competitive markets to deliver a wide choice in the supply of telecommunications networks or services and to enhance consumer welfare, and that economic regulation may not be needed if there is effective competition or if a service is new to a market. Accordingly, the Parties recognise that regulatory needs and approaches differ market by market, and that each Party may determine how to implement its obligations under this Chapter.
In this respect, the Parties recognise that a Party may:
1. engage in direct regulation either in anticipation of an issue that the Party expects may arise or to resolve an issue that has already arisen in the market;
2. rely on the role of market forces, particularly with respect to market segments that are, or are likely to be, competitive or that have low barriers to entry, such as services provided by suppliers of telecommunications services that do not own network facilities; or
3. use any other appropriate means that benefit the long-term public interest.

Article 9.4: Access to and Use of Public Telecommunications Services

Each Party shall ensure that any enterprise of the other Party or covered investment is accorded access to and use of public telecommunications networks and services offered in its Area or across its borders, including leased circuits, on reasonable and non-discriminatory terms and conditions.
Each Party shall ensure that any enterprise of the other Party or covered investment is permitted to:
1. purchase or lease, and attach terminal or other equipment that interfaces with a public telecommunications network;
2. provide services to individual or multiple end-users over leased or owned circuits;
3. connect leased or owned circuits with public telecommunications networks and services or with circuits leased or owned by another enterprise;
4. perform switching, signalling, processing and conversion functions; and
5. use operating protocols of its choice.
Each Party shall ensure that an enterprise of the other Party or covered investment may use public telecommunications networks and services for the movement of information in its Area or across its borders, including for intra-corporate communications, and for access to information contained in databases or otherwise stored in machine-readable form in the Area of either Party or in the territories of any non-Party.
Notwithstanding paragraph 3, a Party may take such measures as are necessary to ensure the security and confidentiality of messages and to protect the personal information of end-users of public telecommunications networks or services, provided that those measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination, or a disguised restriction on trade in services.
Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks and services, other than as necessary to:
1. safeguard the public service responsibilities of suppliers of public telecommunications networks and services, in particular their ability to make their networks or services generally available to the public; or
2. protect the technical integrity of public telecommunications networks or services.
Provided that they satisfy the criteria set out in paragraph 5, conditions for access to and use of public telecommunications networks and services may include:
1. a requirement to use a specified technical interface, including an interface protocol, for connection with those networks and services;
2. requirements, if necessary, for the interoperability of those networks and services;
3. type approval of terminal or other equipment which interfaces with the network and technical requirements relating to the attachment of such equipment to such networks; or
4. a procedure for licences which, if adopted or maintained, is transparent and provides for the processing of applications filed thereunder in accordance with the laws or regulations of the Party.

Article 9.5: Interconnection

Obligations relating to all suppliers

Each Party shall:
1. provide its telecommunications regulatory body with the authority to require suppliers of telecommunications services in its Area to provide, directly or indirectly within the same Area, suppliers of telecommunications services of the other Party with interconnection at reasonable rates; and
2. ensure that, when its telecommunications regulatory body exercises the authority referred to in subparagraph (a), suppliers of telecommunications services in its Area take reasonable steps to protect the confidentiality of commercially sensitive information of, or relating to, suppliers and end-users of telecommunications services obtained in the process of negotiating, and as a result of, interconnection agreements and only use such information for the purpose of providing these services, unless otherwise provided by the laws and regulations of the Party.

Obligations relating to major suppliers

Each Party shall ensure that a major supplier in its Area provides interconnection for the facilities and equipment of suppliers of telecommunications services of the other Party:
1. at any technically feasible point in the major supplier's network;
2. under non-discriminatory terms, conditions (including technical standards and specifications) and rates;
3. of a quality no less favourable than that provided by the major supplier for its own like services, for like services of non-affiliated service suppliers, or for its subsidiaries or other affiliates;
4. on a timely basis;
5. on terms and conditions (including technical standards and specifications), and at cost-oriented rates, that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the suppliers need not pay for network components or facilities that they do not require for the service to be provided; and
6. on request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
Each Party shall ensure that a major supplier in its Area provides suppliers of telecommunications services of the other Party the opportunity to interconnect their facilities and equipment with those of the major supplier through at least one of the following options:
1. a reference interconnection offer or a standard interconnection offer, containing the rates, terms and conditions that the major supplier offers generally to suppliers of telecommunications services;
2. the terms and conditions of an existing interconnection agreement that is in effect; or
3. the terms and conditions set by a Party's telecommunications regulatory body.
In addition to the options provided in paragraph 3, each Party shall ensure that suppliers of telecommunications services of the other Party have the opportunity to interconnect their facilities and equipment with those of the major supplier through the negotiation of a new interconnection agreement.
Each Party shall provide a means for suppliers of telecommunications services of the other Party to obtain the rates, terms and conditions necessary for interconnection offered by a major supplier through at least one of the following options:
1. the public availability of interconnection agreements between a major supplier in its Area and other suppliers of telecommunications services in its Area;
2. the public availability of rates, terms and conditions for interconnection with a major supplier set by the telecommunications regulatory body or other competent authority; or
3. the public availability of a reference interconnection offer or a standard interconnection offer as provided for under paragraph 3(a).
Each Party shall make publicly available the applicable procedures for interconnection negotiations with a major supplier in its Area.

Article 9.6: Telecommunications Regulatory Body and Government Ownership

With a view to ensuring the independence and impartiality of telecommunications regulatory bodies, each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of telecommunications services. To this end, each Party shall ensure that any financial interest⁴ that it holds, or any operating or management role it maintains, in a supplier of telecommunications services does not influence the decisions and procedures of its telecommunications regulatory body.
Each Party shall ensure that the regulatory decisions and procedures of its telecommunications regulatory body or other competent authority are impartial with respect to all current and prospective market participants and shall be made and implemented without undue delay.
Each Party shall provide its telecommunications regulatory body or other competent authority with the authority to enforce the Party's measures relating to the obligations set out in Articles 9.4, 9.5, 9.10, 9.11, 9.12, 9.13, 9.14, 9.16 and 9.17. Such authority shall include the ability to impose sanctions, which may include financial penalties, injunctive relief (on an interim or final basis), or the modification, suspension or revocation of licences.
Neither Party shall accord more favourable treatment to a supplier of telecommunications services in its Area than that accorded to a like service supplier of the other Party on the basis that the supplier receiving more favourable treatment is owned by the Party.

Article 9.7: Technology Choice

Neither Party shall prevent a supplier of telecommunications services from choosing the technologies it wishes to use to supply its services, subject to requirements, including statutory or licensing requirements, necessary to satisfy its legitimate public policy objectives, provided that any measure restricting that choice is not prepared, adopted or applied in a manner that creates unnecessary obstacles to trade.
When a Party finances the development of advanced networks⁵, it may make its financing conditional on the use of technologies that meet its specific public policy objectives.

Article 9.8: Licensing

If a Party requires a supplier of telecommunications services to have a licence, the Party shall ensure the public availability of:
1. all the licensing criteria and procedures it applies;
2. the period of time it normally requires to reach a decision concerning an application for a licence; and
3. the terms and conditions of all licences in effect.
Each Party shall ensure that, on request, an applicant is informed of the reasons for any:
1. denial of a licence;
2. imposition of supplier-specific conditions on a licence;
3. revocation of a licence; or
4. refusal to renew a licence.

Article 9.9: Transparency

Further to Article 16.2.1 (Publication) of Chapter 16 (Transparency), each Party shall ensure that its measures relating to telecommunications services are made publicly available, including:
1. tariffs and other terms and conditions of service;
2. specifications of technical interfaces;
3. conditions for attaching terminal or other equipment to the public telecommunications network;
4. licensing requirements, if any;
5. general procedures relating to the resolution of telecommunications disputes in accordance with Article 9.18; and
6. any measures of the telecommunications regulatory body if the Party delegates to that body the responsibility for preparing, amending and adopting standards-related measures affecting access and use.
Further to Article 16.2.2 (Publication) of Chapter 16 (Transparency), each Party shall ensure that when its telecommunications regulatory body seeks input⁶ for a proposal for a regulation, that body should, unless otherwise provided by the laws and regulations of the Party:
1. make the proposal public or otherwise available to any interested persons;
2. include an explanation of the purpose of and reasons for the proposal;
3. provide interested persons with adequate public notice of the ability to comment and reasonable opportunity for such comment;
4. to the extent practicable, make publicly available all relevant comments filed with it; and
5. respond to all significant and relevant issues raised in comments filed, in the course of issuance of the final regulation⁷.

Article 9.10: Access to Facilities

Each Party shall ensure that a major supplier in its Area provides access to poles, towers, ducts, conduits or any other facilities as determined by the Party, and the sites on which these are located, owned or controlled by the major supplier, to suppliers of telecommunications services of the other Party in the Area of the Party on a timely basis, on terms and conditions and at rates, that are reasonable, non-discriminatory and transparent, subject to technical feasibility.
A Party may determine, in accordance with its laws and regulations, the poles, towers, ducts, conduits or any other facilities, and the sites on which such facilities are located, to which it requires major suppliers in its Area to provide access in accordance with paragraph 1. If a Party makes such a determination, it shall take into account factors such as the competitive effect of lack of such access, whether such structures can be substituted in an economically or technically feasible manner in order to provide a competing service, or other specified public interest factors.
If a Party determines that a major supplier in its Area shall provide access to a facility in accordance with paragraph 1 and paragraph 2, the Party shall provide its telecommunications regulatory body with the authority to require the major supplier to provide reasonable space within the facility to co-locate equipment to establish interconnection, on a timely basis, and on terms and conditions and at cost-oriented rates, that are reasonable and non-discriminatory.

Article 9.11: Unbundling of Network Elements

Each Party shall provide its telecommunications regulatory body with the authority to require a major supplier in its Area to offer to suppliers of telecommunications services of the other Party access to network elements on an unbundled basis on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory and transparent for the supply of telecommunications services.

Article 9.12: Treatment by Major Suppliers

Each Party shall provide its telecommunications regulatory body with the authority to require that any major supplier in its Area accords suppliers of telecommunications services of the other Party treatment no less favourable than that major supplier accords in like circumstances to its subsidiaries, its affiliates or non-affiliated service suppliers regarding:

the availability, provisioning, rates or quality of like telecommunications services; and
the availability of technical interfaces necessary for interconnection.

Article 9.13: Competitive Safeguards

Each Party shall maintain appropriate measures for the purpose of preventing suppliers of telecommunications services that, alone or together, are a major supplier in its Area from engaging in or continuing anti-competitive practices.
The anti-competitive practices referred to in paragraph 1 include in particular:
1. engaging in anti-competitive cross-subsidisation;
2. using information obtained from competitors with anti-competitive results; and
3. not making available, on a timely basis, to suppliers of telecommunications services, technical information about essential facilities and commercially relevant information that is necessary for them to provide services, with anti-competitive results.

Article 9.14: International Submarine Cable Systems

This Article applies to international submarine cable systems where a major supplier in the Area of a Party operates a submarine cable system or a submarine cable landing station.
Each Party shall provide its telecommunications regulatory body with the authority to:
1. subject to technical feasibility and pre-existing contractual commitments, require a major supplier in its Area to allow suppliers of telecommunications services of the other Party to:
  1. access the submarine cable landing station for the purpose of interconnection with the submarine cables owned by any supplier of telecommunications services;
  2. co-locate their transmission and routing equipment at the submarine cable landing station;
  3. connect their equipment to submarine cable capacity, including by accessing the supplier's cross-connect links; and
  4. access ancillary services in or related to the submarine cable landing station; and
2. ensure that the terms, conditions and rates for the services referred to in subparagraph (a) as supplied by a major supplier are reasonable and non-discriminatory.
Interconnection shall be consistent with Article 9.5 and access to facilities shall be consistent with Article 9.10.

Article 9.15: Universal Service

Each Party has the right to define the kind of universal service obligation it wishes to adopt or maintain. 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 9.16: Allocation and Use of Scarce Resources

Each Party shall administer its procedures for the allocation and use of scarce telecommunications resources, including frequencies, numbers and rights of way, in an objective, timely, transparent and non-discriminatory manner.

Spectrum

Each Party shall make publicly available the current state of frequency bands allocated to specific uses but retains the right not to provide detailed identification of frequencies allocated or assigned for specific government uses.
When making a spectrum allocation for commercial telecommunications services, each Party shall endeavour to rely on an open and transparent process that considers the overall public interest, including the promotion of competition. Each Party shall endeavour to rely generally on market-based approaches in assigning spectrum for terrestrial commercial telecommunications services. To this end, each Party shall have the authority to use mechanisms such as auctions and tenders, if appropriate, to assign spectrum for commercial use. Each Party shall make publicly available the results of such mechanisms for assigning spectrum for commercial use.
For greater certainty, a Party's measures allocating and assigning spectrum or managing frequencies shall not be considered inconsistent with Article 7.3 (Market Access) of Chapter 7 (Cross-Border Trade in Services), either as it applies to cross-border trade in services or through the operation of Article 7.2.2 (Scope) of Chapter 7 (Cross-Border Trade in Services) to an investor or covered investment of the other Party. Accordingly, each Party retains the right to establish and apply its spectrum and frequency management policies that may have the effect of limiting the number of suppliers of a telecommunications service provided that the Party does so in a manner consistent with other provisions of this Agreement. This includes the ability to allocate frequency bands, taking into account present and future needs and spectrum availability.

Access to Numbers

Each Party shall ensure that suppliers of public telecommunications services of the other Party established in its Area are afforded access to telephone numbers on a non-discriminatory basis.

Number Portability

Each Party shall ensure that suppliers of public telecommunications services in its Area provide number portability, without impairment to quality, reliability or convenience, on a timely basis and on reasonable and non-discriminatory terms and conditions .

Article 9.17: International Mobile Roaming

The Parties shall endeavour to cooperate on promoting transparent and reasonable rates for international mobile roaming services that can help promote the growth of trade between the Parties and enhance consumer welfare.
A Party may choose to take steps to enhance transparency and competition with respect to international mobile roaming rates and technological alternatives to roaming services, such as:
1. ensuring that information regarding retail rates is easily accessible to consumers; and
2. minimising impediments to the use of technological alternatives to roaming, whereby consumers when visiting the Area of a Party from the Area of the other Party can access telecommunications services using the device of their choice.
Each Party shall ensure that suppliers of public telecommunications services in its Area or its telecommunications regulatory body make publicly available the retail rates for international mobile roaming services for voice, data and text messages.
The Parties recognise that a Party, if it has the authority to do so, may choose to adopt or maintain measures affecting rates for wholesale international roaming services with a view to ensuring that such rates are reasonable. If a Party considers it appropriate, it may cooperate on and implement mechanisms with the other Party to facilitate the implementation of such measures, including by entering into arrangements with the other Party.
If a Party:
1. chooses to regulate rates or conditions for wholesale international mobile roaming services; and
2. has entered into an arrangement with the other Party to reciprocally regulate rates or conditions for wholesale international mobile roaming services for suppliers of the Parties,
it shall ensure that a supplier of public telecommunications services of the other Party has access to the regulated rates or conditions for wholesale international mobile roaming services for its customers roaming in the Area of the first Party⁹
A Party that ensures access to regulated rates or conditions for wholesale international mobile roaming services in accordance with paragraph 5 shall be deemed to be in compliance with its obligations under Article 7.6 (Most-Favoured-Nation Treatment) of Chapter 7 (Cross-Border Trade in Services), and Articles 9.4 and 9.12, with respect to international mobile roaming services.
For greater certainty:
1. nothing in this Article shall require a Party to regulate rates or conditions for international mobile roaming services; and
2. neither Party shall, solely on the basis of any obligations owed to it by the regulating Party under a most-favoured-nation provision, or under a telecommunications-specific non-discrimination provision, in any existing international trade agreement, seek or obtain for its suppliers the access to regulated rates or conditions for wholesale international mobile roaming services that is provided under this Article.

Article 9.18: Dispute Resolution

Further to Articles 16.4 (Administrative Proceedings) and 16.5 (Review and Appeal) of Chapter 16 (Transparency), each Party shall ensure that:
1. enterprises have recourse to a telecommunications regulatory body or other competent authority of the Party to resolve disputes regarding the Party's measures relating to matters set out in Articles 9.4, 9.5, 9.8, 9.10, 9.11, 9.12, 9.13, 9.14, 9.16 and 9.17;
2. if a telecommunications regulatory body declines to initiate any action on a request to resolve a dispute, it shall, upon request, provide a written explanation for its decision within a reasonable period of time; and
3. suppliers of telecommunications services of the other Party that have requested interconnection with a major supplier in the Area of the Party may seek review, within a reasonable and publicly specified period of time after the supplier requests interconnection, by the Party's telecommunications regulatory body or other competent authority to resolve disputes regarding the terms, conditions and rates for interconnection with that major supplier.
Neither Party shall generally permit the making of an application for judicial review to constitute grounds for non-compliance with the determination or decision of the telecommunications regulatory body, unless:
1. the judicial body issues an order that the determination or decision shall not be enforced while the proceeding is pending; or
2. other exceptional circumstances exist to justify non-compliance, provided such action is in accordance with the laws and regulations of the Party.

Article 9.19: Contact Points

Each Party shall designate one or more contact points to facilitate communication between the Parties on any matter covered by this Chapter, and shall provide details of such contact points to the other Party.
Each Party shall notify the other Party promptly of any amendments to the details of its contact points.

1. For greater certainty, interconnection as referred to in this Chapter does not include access to unbundled network elements.

2. For greater certainty, for Australia, Ministers or the Cabinet of Australia are not such a body.

3. For greater certainty, nothing in this Chapter shall be construed to require a Party to authorise an enterprise of the other Party or covered investment to establish, construct, acquire, lease, operate or supply public telecommunications services, unless otherwise provided for in this Agreement.

4. This paragraph shall not be construed to prohibit a government entity of a Party other than the telecommunications regulatory body from owning equity in a supplier of telecommunications services.

5. For greater certainty, advanced networks include broadband networks.

6. For greater certainty, seeking input does not include internal governmental deliberations, including input sought from and exchanges with other government agencies or external advisors.

7. For greater certainty, a Party may consolidate its responses to the comments received from interested persons.

8. In the case of Hong Kong, China, paragraph 6 shall not apply to Class 2 Voice over Internet Protocol (VoIP) services until such time as Hong Kong, China determines, pursuant to periodic review, that such services are subject to the number portability requirement. For the purposes of this footnote, "Class 2 VoIP services" means internal telecommunications services as defined in Special Condition 18.2 of a Services-Based Operator (SBO) Licence in Hong Kong, China as at the date of entry into force of this Agreement and has a telephone number beginning with a prefix of "58" and any successor prefixes.

9. For greater certainty, access under paragraph 5 to the rates or conditions regulated by a Party shall be available to a supplier of the other Party only if such regulated rates or conditions are reasonably comparable to those reciprocally regulated under the arrangement referred to in subparagraph (b). The telecommunications regulatory body of the first Party shall, in the case of disagreement, determine whether the rates or conditions are reasonably comparable.

Last Updated: 15 April 2019

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