Article 11.1: Definitions
For the purposes of this Chapter:
(a) cost-oriented means based on cost, and may include a
reasonable profit, and may involve different cost methodologies
for different facilities or services;
(b) dialing
parity means the ability of an end-user to use an equal
number of digits to access a like public telecommunications
service, regardless of the public telecommunications service
supplier chosen by such end-user and in a way that involves no
unreasonable dialing delays;
(c) end-user means a final consumer of or subscriber to a
public telecommunications service, including a service supplier
other than a supplier of public telecommunications
services;
(d) essential facilities means facilities of a public
telecommunications network or service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers, and
(ii) cannot feasibly be economically or technically substituted in order to provide a service;
(e) interconnection means linking with suppliers providing
public telecommunications networks or services in order to
allow the users of one supplier to communicate with the users
of another supplier and to access services provided by another
supplier;
(f) leased circuit means telecommunications facilities
between two or more designated points that are set aside for
the dedicated use of, or availability to, a particular customer
or other users;
(g) major
supplier means a supplier or suppliers which alone or
together have the ability to materially affect the terms of
participation (having regard to price and supply) in the
relevant market for public telecommunications networks or
services as a result of control over essential facilities or
use of its position in the market;
(h) network element means a facility or equipment used in
supplying a public telecommunications service, including
features, functions, and capabilities provided by means of such
a facility or equipment, which may include local loop, sub
loops and line sharing;
(i) non-discriminatory means treatment no less favourable
than that accorded to any other user of like public
telecommunications networks or services in like
circumstances;
(j) number portability means the ability of end-users to
retain existing telephone numbers when switching between
suppliers of like public telecommunications networks or
services;
(k) physical co-location means physical access to space in
order to install, maintain or repair equipment at premises
owned or controlled and used by a major supplier to supply
public telecommunications networks or services;
(l) public telecommunications network means the
telecommunications infrastructure which a Party requires to be
used to provide telecommunications services;
(m) public
telecommunications service means any telecommunications
service which a Party requires to be offered to the public
generally. Such services may include, inter alia,
telephone and data transmission typically involving
customer-supplied information between two or more points
without any end-to-end change in the form or content of the
customer's information;
(n) regulatory decisions means decisions by regulators made
pursuant to authority conferred under domestic law including in
relation to:
(i) the making of rules for the telecommunications industry excluding legislation and statutory rules;
(ii) the approval of terms and conditions, standards and codes to apply in the telecommunications industry;
(iii) the adjudication or other resolution of disputes between suppliers of public telecommunications networks or services; and
(iv) licensing;
(o) telecommunications means the transmission and reception
of signals by any electromagnetic means;
(p) telecommunications regulatory body means any body or
bodies responsible for the regulation of telecommunications;
and
(q) user means an end-user or a supplier of public telecommunications
networks or services.
Article
11.2: Scope and Coverage
1. This
Chapter applies to:
(a) measures adopted or maintained by a Party relating to access to and use of public telecommunications networks and services;
(b) measures adopted or maintained by a Party relating to suppliers of public telecommunications networks and services;
(c) measures adopted or maintained by a Party relating to the conduct of major suppliers; and
(d) other measures relating to public telecommunication networks or services.
2. In the
event of any inconsistency between this Chapter and another
Chapter, this Chapter shall prevail to the extent of the
inconsistency.
3. Except to
ensure that enterprises operating broadcast stations and cable
systems have continued access to and use of public
telecommunications networks and services, this Chapter does not
apply to measures that a Party adopts or maintains relating to
broadcast or cable distribution of radio or television
programming.
4. Nothing
in this Chapter shall be construed as:
(a) requiring a Party to compel any enterprise to establish, construct, acquire, lease, operate, or provide telecommunications networks or services where such networks or services are not offered to the public generally;
(b) requiring 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
(c) preventing a Party from prohibiting persons operating private networks from using their networks to provide public telecommunications networks or services to third persons.
Section A
Access To and Use of Public
Telecommunications Networks or Services
Article
11.3: Access and Use
1. Each
Party shall ensure that enterprises of the other Party have
access to and use of any public telecommunications network or
service, including leased circuits, offered in its territory or
across its borders on a timely basis and on terms and
conditions that are reasonable and non-discriminatory such as
those set out in paragraphs 2 to 6.
2. Each
Party shall ensure that such enterprises are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with, a public telecommunications network;
(b) provide services to individual or multiple end-users over leased or owned circuits;
(c) connect owned or leased circuits with public telecommunications networks and services in the territory, or across the borders, of that Party, or with circuits leased or owned by another enterprise;
(d) perform switching, signaling, processing, and conversion functions; and
(e) use operating protocols of their choice.
3. Each
Party shall ensure that enterprises of the other Party may use
public telecommunications networks and services for the
movement of information in its territory or across its borders
and for access to information contained in databases or
otherwise stored in machine-readable form in the territory of
either Party or any WTO Member.
4.
Notwithstanding paragraph 3, a Party may take such measures as
are necessary to:
(a) ensure the security and confidentiality of messages; or
(b) protect the privacy of personal data of end users of public telecommunications networks or services,
subject to the requirement that such 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.
5. Each
Party shall ensure that no condition is imposed on access to
and use of public telecommunications networks or services,
other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services.
6.
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:
(a) a requirement to use specified technical interfaces, including interface protocols, for inter-connection with such networks and services;
(b) requirements, where necessary, for the inter-operability of such services;
(c) 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; and
(d) notification, registration and licensing which, if adopted or maintained, are transparent and applications processed without undue delay.
Section B
Suppliers of Public Telecommunications
Networks or Services
Article
11.4:
Interconnection
1. Each
Party shall ensure suppliers of public telecommunications
networks or services in its territory provide, directly or
indirectly, interconnection with the suppliers of public
telecommunications networks or services of the other Party.
2. In
carrying out paragraph 1, each Party shall ensure that
suppliers of public telecommunications networks or services in
its territory take reasonable steps to protect the
confidentiality of commercially sensitive information of, or
relating to, suppliers and end-users of public
telecommunications networks or services and only use such
information for the purpose of providing those services.
Article
11.5:
Number Portability
Each Party shall ensure that suppliers of public
telecommunications networks or services in its territory
provide number portability, to the extent technically and
economically feasible, in a reasonable period of time and on
terms and conditions that are reasonable and
non-discriminatory.
Article
11.6:
Dialing Parity and Access to Telephone Numbers
Each Party shall ensure that:
(a) its
telecommunication regulatory body has the authority to require
that suppliers of public telecommunications services in its
territory provide dialing parity within the same category of
service to suppliers of public telecommunications services of
the other Party; and
(b) suppliers of
public telecommunications services of the other Party are
afforded non-discriminatory access to telephone numbers.
Article
11.7:
Submarine Cable Systems
Each Party shall ensure reasonable and non-discriminatory
treatment for access to submarine cable systems (including
landing facilities) in its territory, where a supplier is
authorised to operate a submarine cable system as a public
telecommunications service.
Section C
Conduct of Major Suppliers of Public
Telecommunications
Networks and Services
Article
11.8:
Major Supplier Competitive Safeguards
Each Party shall maintain appropriate measures for the
purpose of preventing suppliers who, alone or together, are a
major supplier in its territory from engaging in or continuing
anti-competitive practices, including in particular:
(a)
engaging in anti-competitive cross-subsidisation;
(b) using
information obtained from competitors with anti-competitive
results; and
(c) not making
available, on a timely basis, to suppliers of public
telecommunications networks or services, technical information
about essential facilities and commercially relevant
information that are necessary for them to provide
services.
Article
11.9:
Treatment by Major Suppliers
Each Party shall ensure that major suppliers in its
territory accord suppliers of public telecommunications
networks and services of the other Party treatment no less
favourable than such major suppliers accord in like
circumstances to their subsidiaries, their affiliates or
non-affiliated service suppliers regarding:
(a) the
availability, provisioning, rates, or quality of like public
telecommunications networks or services; and
(b)
the availability of technical interfaces necessary for
interconnection.
Article
11.10:
Interconnection with Major
Suppliers11-[16]
General Terms and Conditions
1. Each
Party shall ensure that major suppliers in its territory
provide interconnection for the facilities and equipment of
suppliers of public telecommunications networks or services of
the other Party:
(a) at any technically feasible point in the major supplier's network;
(b) under non-discriminatory terms, conditions (including technical standards and specifications), and rates11-[17];
(c) of a quality no less favourable than that provided by such major suppliers for their own like services, for like services of non-affiliated service suppliers, or for like service of their subsidiaries or other affiliates;
(d) in a timely fashion, on terms, conditions (including technical standards and specifications), and cost-oriented rates11-[18] that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that suppliers seeking interconnection need not pay for network components or facilities that they do not require for the service to be provided; and
(e) 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.
Options for Interconnecting with Major Suppliers
2. Each
Party shall ensure that suppliers of public telecommunications
networks or services of the other Party may interconnect their
facilities and equipment with those of major suppliers in its
territory pursuant to at least one of the following
options11-[19]:
(a) a reference interconnection offer or another standard interconnection offer containing the rates, terms, and conditions that the major supplier offers generally to suppliers of public telecommunications networks or services;
(b) the terms and conditions of an existing interconnection agreement; or
(c) through negotiation of a new interconnection agreement.
Public Availability of Procedures for Interconnection
Negotiations
3. Each
Party shall ensure that applicable procedures for
interconnection negotiations with major suppliers in its
territory are made publicly available.
Public Availability of Terms and Conditions for
Interconnection with Major Suppliers
4. Each
Party shall ensure, where interconnection is provided under
paragraph 2(a), that the rates, terms, and conditions are made
publicly available.
Article
11.11:
Resale
Each Party11-[20] shall ensure that major suppliers in its
territory:
(a) offer for
resale, at reasonable rates,11-[21] to suppliers of public
telecommunications services of the other Party, public
telecommunications services that such major supplier provides
at retail to end users that are not suppliers of public
telecommunications services; and
(b) do not impose
unreasonable or discriminatory conditions or limitations on the
resale of such services.
Article
11.12:
Unbundling of Network Elements
Each Party shall provide its telecommunications regulatory
body with the authority to require that major suppliers in its
territory provide suppliers of public telecommunications
networks and services of the other Party access to network
elements for the provision of public telecommunications
networks or services on an unbundled basis, and on terms and
conditions and at cost-oriented rates that are reasonable and
non-discriminatory.
Article
11.13:
Provisioning and Pricing of Leased Circuits
1. Each
Party shall ensure that major suppliers in its territory
provide enterprises of the other Party leased circuit services
that are public telecommunications networks or services in a
reasonable period of time, on terms and conditions, and at
rates, that are reasonable and non-discriminatory.
2. In
carrying out paragraph 1, each Party shall provide its
telecommunications regulatory body the authority to require
major suppliers in its territory to offer such leased circuit
services that are public telecommunications networks or
services to enterprises of the other Party at capacity-based,
cost-oriented prices.
Article
11.14:
Co-location
1. Each
Party shall ensure that major suppliers in its territory
provide to suppliers of public telecommunications services of
the other Party physical co-location of equipment necessary for
interconnection or access to unbundled network elements on a
timely basis and on terms, conditions and at cost-oriented
rates that are reasonable and non-discriminatory.
2. Where
physical co-location is not practical for technical reasons or
because of space limitations, each Party shall ensure that
major suppliers in its territory provide alternative solution,
which may include facilitating virtual co-location, on a timely
basis and on terms, conditions and at cost-oriented rates that
are reasonable and non-discriminatory.
3. Each
Party may determine, in accordance with its law and
regulations, which premises in its territory are subject to
paragraphs 1 and 2.
Article 11.15: Access to Poles, Ducts, Conduits,
Transmission Towers, Underground Facilities and Rights of
Way
Each Party shall maintain appropriate measures for the
purpose of preventing major suppliers in its territory from
denying access to poles, ducts, conduits, transmission towers,
underground facilities and rights-of-way, or any other
structures deemed necessary by the Party, owned or controlled
by such major suppliers, to suppliers of public
telecommunications networks or services of the other Party in a
manner which would constitute anti-competitive practices.
Article
11.16:
Denial of Access
Each Party shall ensure that any decision of the Party to
deny access will be provided with a clear and detailed written
explanation.
Section D
Regulatory Measures
Article
11.17: Independent Regulatory Bodies
1. Each
Party shall ensure that any telecommunications regulatory body
that it establishes or maintains is independent and separate
from, and not accountable to, any supplier of public
telecommunications networks or services. To this end,
each Party shall ensure that its telecommunications regulatory
bodies do not hold a financial interest or maintain an
operating role in any supplier of public telecommunications
networks or services.
2. Each
Party shall ensure that the decisions and procedures of its
telecommunications regulatory body are impartial with respect
to all interested persons. To this end, each Party shall
ensure that its regulatory body does not hold a financial
interest in any supplier of public telecommunications networks
or services, and that any financial interest that the Party
holds in a supplier of a public telecommunications networks or
services does not influence the decisions and procedures of its
telecommunications regulatory body.
3. Each
Party shall ensure that the decisions of, and procedures used
by, its telecommunications regulatory bodies shall be fair and
impartial and shall be made and implemented without undue
delay.
Article
11.18: Flexibility in the Choice of Technology
Neither Party may prevent suppliers of public
telecommunications networks or services from choosing the
technologies they wish to use to supply their services,
including packet-based services and commercial mobile wireless
services, subject to requirements necessary to satisfy
legitimate public policy interests, including protection of the
technical integrity of public telecommunications networks and
services.
Article
11.19: Universal Service
Each Party shall administer any universal service obligation
that it maintains in a transparent, non-discriminatory, and
competitively neutral manner and shall ensure that its
universal service obligation is not more burdensome than
necessary for the kind of universal service that it has
defined.
Article
11.20: Licensing Process
1. When a
Party requires a supplier of public telecommunications networks
or services to have a licence, the Party shall make publicly
available:
(a) all the licensing criteria and procedures it applies, including any standard terms and conditions of the licence;
(b) the time it normally requires to reach a decision concerning an application for a licence; and
(c) the terms and conditions of individual licences.
2. Each
Party shall ensure that, on request, an applicant receives the
reasons for the denial of a licence.
3. Each
Party shall ensure that licensing requirements for suppliers of
telecommunications networks or services of the other Party are
applied in a way that is not more burdensome than
necessary.
Article
11.21: Allocation and Use of Scarce Telecommunications
Resources
1. 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.
2. Each
Party shall make publicly available the current state of
allocated frequency bands but shall not be required to provide
detailed identification of frequencies assigned for specific
government uses.
3. For
greater clarity, measures regarding the allocation and
assignment of spectrum and regarding frequency management are
not measures that are per se inconsistent with Article
9.5 (Market Access – Cross-Border Trade in Services
Chapter), which is applied to Chapter 10 (Investment) through
Article 9.2.2 (Scope and Coverage – Cross-Border Trade in
Services Chapter). Accordingly, each Party retains the
right to establish and apply its spectrum and frequency
management policies, which may limit the number of suppliers of
public telecommunications networks or services, provided that
it does so in a manner that is consistent with this
Agreement. Each Party also retains the right to allocate
frequency bands taking into account current and future
needs.
4. When
making a spectrum allocation for non-governmental
telecommunications networks or services, each Party shall
endeavour to rely on an open and transparent public comment
process that considers the overall public interest. Each
Party shall endeavour to rely generally on market-based
approaches in assigning spectrum for terrestrial
non-governmental telecommunications networks or services.
Article
11.22: Enforcement
1. Each
Party shall provide its relevant regulatory body with the
authority to enforce compliance with the Party's measures
relating to the obligations set out in Articles 11.3 to 11.15
and Articles 11.20 to 11.23.
2. Such
authority to enforce compliance shall include the ability to
impose, or seek from administrative or judicial bodies,
effective sanctions, which may include financial penalties, or
the modification, suspension, and revocation of licences.
Article
11.23: Resolution of Telecommunications Disputes and Appeal
Processes
Each Party shall ensure that:
Recourse to a telecommunications regulatory body
(a) enterprises of
the other Party may seek timely review by a telecommunications
regulatory body or other relevant body to resolve disputes
regarding the Party's measures relating to a matter set
out in Articles 11.3 to 11.15 and Articles 11.20 to 11.23;
(b) suppliers of
public telecommunications networks or services of the other
Party that have requested interconnection with a major supplier
in its territory may have recourse, within a reasonable and
publicly available period of time after the supplier requests
interconnection, to a national telecommunications regulatory
body or other relevant body to resolve disputes regarding the
terms, conditions, and rates for interconnection with such
major supplier;
Judicial review
(c) any enterprise
that is aggrieved or whose interests are adversely affected by
a determination or decision of the Party's
telecommunications regulatory body may obtain judicial review
of such determination or decision by an impartial and
independent judicial authority; and
(d) the making of
an application for judicial review shall not have the effect of
delaying the coming into operation of the telecommunications
regulatory body's decision or determination, or of
suspending the operation of the decision or determination,
unless otherwise determined by the relevant judicial body.
Article
11.24: Transparency
Further to Chapter 19 (Transparency), each Party shall
ensure that:
(a) regulatory
decisions, including the basis for such decisions, of its
telecommunications regulatory body are promptly published or
otherwise made available to all interested persons;
(b) its measures
relating to public telecommunications networks or services are
made publicly available, including:
(i) tariffs and other terms and conditions of service;
(ii) requirements for judicial review following a regulatory decision;
(iii) specifications of technical interfaces;
(iv) conditions for attaching terminal or other equipment to public telecommunications networks;
(v) notification, permit, registration, or licensing requirements, if any; and
(vi) measures of bodies responsible for preparing, amending, and adopting standards-related measures affecting access and use.
Article
11.25: Industry Participation
Each Party shall facilitate consultation with suppliers of
public telecommunications networks or services of the other
Party operating in its territory in the development of
telecommunications policy, regulations and standards in a
manner that is open to any participant in the
telecommunications industry in the territory of that Party.
Article
11.26: International Standards
The Parties recognise the importance of international
standards for global compatibility and interoperability of
telecommunications networks and services, and undertake to
promote such standards through the work of relevant
international bodies, including the International
Telecommunication Union and the International Organization for
Standardization.
11-[16]Australia's
interconnection regime provides access on terms and
conditions which are fair and reasonable to all parties and
which do not unfairly discriminate between users.
Access rights are guaranteed by legislation and the terms and
conditions of access are established primarily through
processes of commercial negotiation or by reference to access
undertakings given by suppliers of public telecommunications
networks or services which may draw upon an industry code of
practice. Any code of practice and each supplier's
undertaking will be subject to approval by the regulator.
11-[17]In Australia, the rate at
which interconnection is provided is determined by
negotiation. Both negotiating parties have recourse to
the regulator which will make a decision based on transparent
criteria to ensure that rates are fair and reasonable in the
circumstances.
11-[18]In Australia, the regulator may
resolve any dispute on what costs are relevant in determining
rates.
11-[19]For Australia, these options include
arbitration.
11-[20]Australia may determine in
accordance with its law and regulations which public
telecommunications services must be offered for resale by
major suppliers in accordance with paragraph 1, based on the
need to promote competition or such other factors as the
Party considers relevant.
11-[21]For the purposes of Article 11.11(a): 1) a Party
may determine reasonable rates through any methodology it
considers appropriate; and 2) wholesale rates, set pursuant
to a Party's law and regulations, shall be considered
reasonable.