CHAPTER 18

TELECOMMUNICATIONS

Article 18.1: Definitions

For the purposes of this Chapter:

cost-orientedmeans based on cost, and may include a  reasonable profit, and  may involve different cost methodologies for different facilities or services

dialing parity means the ability of an end-user to use an equal number of digits to access a particular public telecommunications service, regardless of which public telecommunications services supplier the end-user chooses;

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;

enterprise means an enterprise as defined in Article 1.4 (General Definitions) and a branch of an enterprise;

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

(a)       are exclusively or predominantly provided  by  a  single  or  limited  number  of suppliers, and

(b)       cannot feasibly be economically, or technically substituted in order to supply a service;

interconnection means linking suppliers providing public telecommunications 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;

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 and supplied by a supplier of a fixed telecommunications service;

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

major supplier means a supplier of public telecommunications services that   has the ability to   materially affect  the  terms  of  participation  (having regard  to  price  and  supply)  in  the

relevant  market for public telecommunications services as a result of:

(a)         control over essential facilities, or

(b)         use of its position in the market1

mobile service means a public telecommunications service supplied through  mobile wireless means;

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

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

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

physical co-location means physical access to and control over space in order to install, maintain or repair equipment, at premises owned or controlled and used by a major supplier to  provide public telecommunications services;

public telecommunications network means telecommunications infrastructure used to provide public telecommunications services between defined network termination points;

public  telecommunications  service  means  any  telecommunications  service  that   a  Party requires, explicitly or in effect, to be offered to the public generally that typically involves the transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the customer’s information. These services may include telephone and data transmission;

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 public telecommunications services that is willing to accept it may obtain interconnection with the major supplier on that basis, without having to engage in negotiations with the major supplier concerned;

1 For Mexico, a major supplier includes a preponderant economic agent deemed as such by virtue of their national share in the provision of telecommunication services, when it directly or indirectly holds more than fifty percent national share. This percentage shall be measured either by the number of users, subscribers, traffic on their networks or the utilized capacity of said networks, according to the information held by the Federal Telecommunications Institute.

roaming service means a mobile service provided pursuant to  an agreement between suppliers of  public telecommunications  services  that enables end-users to use their mobile handset or other device for voice, data, or messaging services  while outside the home public telecommunications network of the mobile handset or other device;

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

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

user means a service consumer or a service supplier; and

value-added services means those telecommunications services employing computer processing applications that:

(a)        act on the format, content, code, protocol or similar aspects of a customer’s transmitted information;

(b)       provide a customer with additional, different or restructured information; or

(c)       involve customer interaction with stored information;

virtual co-location means an arrangement whereby a requesting supplier that seeks co-location may specify equipment to be used in the premises of a major supplier but does not obtain physical access to those premises and allows the major supplier to install, maintain, and repair that equipment.

Article 18.2: Scope

  1. 1. This Chapter applies to any measure affecting trade in telecommunications  services, including:

(a)        any measure relating to access to and use of public telecommunications networks or services;

(b)       any measure relating to obligations of suppliers of public telecommunications services;

(c)       any other measure relating to public telecommunications networks or services;

and

(d)       any measure relating to the supply of value-added services.

  1. Except to ensure that an enterprise operating a broadcast station or cable system has continued access to and use of public telecommunications networks and services, as provided under Article 18.3( Access and Use), this Chapter does not apply to any measure relating to broadcast or cable distribution of radio or television programming.2
  1. 3. Nothing in this Chapter shall be construed to:

(a)        require a Party, or require a Party to compel any enterprise, to establish, construct, acquire, lease, operate, or provide a telecommunications network or service not offered to the public generally; or

(b)        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.

  1. 4. Annex 18-A (Rural Telephone Suppliers) includes additional provisions relating to the scope of this

Article 18.3: Access and Use

  1. Each Party shall ensure that any enterprise of another Party has access to and use of any public telecommunications network or service, including leased circuits, offered in its territory or across its borders, on reasonable and non-discriminatory terms and conditions. This obligation shall be applied, inter alia, to paragraphs 2 through 6.3
  1. Each Party shall ensure that any enterprise of the other Party is 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 leased or owned circuits with public telecommunications networks and

services or with circuits leased or owned by another enterprise;

(d)       perform switching, signaling, processing, and conversion functions; and

(e)       use operating protocols of its choice.

2 For greater certainty, to the extent that services suppliers engaged in the broadcast or cable distribution of radio or television programming are also engaged in the supply of public telecommunications services, measures relating to the supply of those public telecommunications by those services suppliers are covered by this Chapter.

3 For greater certainty, this Article does not prohibit any Party from requiring an enterprise to obtain a license to supply any public telecommunications service within its territory.

  1. Each Party shall ensure that any enterprise of the other Party may use public telecommunications networks or services for the movement of information in its territory 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 territory of any Party.
  1. Notwithstanding paragraph 3, a Party may take measures that are necessary to ensure the security and confidentiality of messages and to protect the privacy of personal data 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 disguised restriction on trade in services.
  1. 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:

(a)        safeguard    the    public    service    responsibilities    of    suppliers    of    public telecommunications networks and 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.

  1. Provided that conditions for access to and use of public telecommunications networks and services satisfy the criteria set out in paragraph 5, such conditions may include:

(a)        a requirement to use a specified technical interface, including an interface protocol, for connection with those networks or services;

(b)       a requirement, if necessary, for the interoperability of those networks and services; (c)       type approval of terminal or other equipment that interfaces with the network and

technical  requirements  relating  to  the  attachment  of  that  equipment  to  those networks; and

(d)       notification,  registration,  and  licensing  which,  if  adopted  or  maintained,  is transparent and provides for the processing of applications filed thereunder in accordance with a Party’s laws or regulations.

Article 18.4: Obligations Relating to Suppliers of Public Telecommunications Services

Interconnection

  1. Each Party shall ensure that suppliers of public telecommunications services in its territory provide, directly or indirectly within the same territory, interconnection with suppliers of public telecommunications services of another Party.
  1. Each Party shall provide its telecommunications regulatory body with the authority to require interconnection at reasonable rates.
  1. In carrying out paragraph 1, each Party shall ensure that suppliers of public telecommunications 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 services obtained as a result of interconnection arrangements and only use that information for the purpose of providing these services.

Resale

  1. No Party shall prohibit the resale of any public telecommunications service.

Roaming

  1. No Party shall prohibit suppliers of public telecommunications services from entering into agreements to provide roaming services, including agreements to provide roaming service to devices that is not limited to a transient presence in a Party’s territory.

Number Portability

  1. Each Party shall ensure that suppliers of public telecommunications services in its territory provide number portability without impairment to quality and reliability, on a timely basis, and on reasonable and non-discriminatory terms and conditions4.

Dialing Parity

  1. Each Party shall ensure 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 another Party.5

Access to Numbers

  1. Each Party shall ensure suppliers of public telecommunications services of another Party established in its territory are afforded access to telephone numbers on a non-discriminatory basis.

4 With respect to Mexico, this obligation shall apply only to end users switching suppliers within the same category of service until such time as Mexico determines, pursuant to periodic review, that it is economically and technically feasible to implement number portability without such restriction. With respect to the United States and Canada, this obligation is limited to the ability of end-users to retain at the same location the same telephone numbers, until such time as the Party determines, pursuant to periodic review, that it is economically and technically feasible to implement number portability without such restriction in its territory.

5 For greater certainty, this paragraph shall not be construed to apply to pre-subscribed long distance service.

Article 18.5:  Treatment by Major Suppliers of Public Telecommunications Services

Each Party shall ensure that a major supplier in its territory accords suppliers of public telecommunications services of another Party treatment no less favorable than that major supplier accords in like circumstances to itself, its subsidiaries, its affiliates, or non-affiliated service suppliers regarding:

(a)        the availability, provisioning, rates, or quality of like public telecommunications services; and

(b)       the availability of technical interfaces necessary for interconnection.

Article 18.6:  Competitive Safeguards

  1. Each Party shall maintain appropriate measures for the purpose of preventing suppliers of public telecommunications services that, alone or together, are a major supplier in its territory from engaging in or continuing anti-competitive practices.6
  1. The anti-competitive practices referred to in paragraph 1 include in particular: (a) engaging in anti-competitive cross-subsidization;

(b)       using information obtained from competitors with anti-competitive results; and

(c)        not making available, on a timely basis, to suppliers of public telecommunications services, technical information about essential facilities and commercially relevant information that are necessary for them to provide services.

Article 18.7:  Resale7

Each Party shall ensure that a major supplier in its territory does not impose unreasonable or discriminatory conditions or limitations on the resale of its public telecommunications services.

6 Mexico reaffirms the principles underlying the Decree amending and supplementing certain provisions of the Articles

6, 7, 27, 28, 73, 78, 94 and 105 of the Political Constitution of the United Mexican States, in telecommunications, Diario Oficial de la Federacion, June 11, 2013 and, as set out therein, shall impose on a major supplier the necessary measures to prevent impairment of competition. For Mexico, any changes to the measures concerning the rates, terms,

and conditions of access to and use of the networks, facilities, and services of a major supplier shall be consistent with

the objective of advancing effective competition and preventing monopolistic practices and shall not impair the conditions of competition in the corresponding market.

7 For the purposes of this Article, a supplier of mobile services is not a major supplier unless a Party determines that the supplier meets the definition of “major supplier” set out in Article 18.1.

Article 18.8:  Unbundling of Network Elements

Each Party shall provide its telecommunications regulatory body the authority to require a major supplier in its territory to offer to public telecommunications service suppliers 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 public telecommunications services.   A Party may determine the network elements required to be made available in its territory, and the suppliers that may obtain those elements, in accordance with its laws and regulations.

Article 18.9: Interconnection with Major Suppliers

General Terms and Conditions

  1. Each Party shall ensure that a major supplier in its territory provides interconnection for the facilities and equipment of suppliers of public telecommunications services of another 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 rates;

(c)        of a quality no less favorable 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;

(d)       in a timely manner, 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 do not have to 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 made generally available to users, subject to charges that reflect the cost of construction of necessary additional facilities.

Options for Interconnecting with Major Suppliers

  1. Each Party shall ensure that a major supplier in its territory provides suppliers of public telecommunications services of another Party the opportunity to interconnect their facilities and equipment with those of the major supplier through:

(a)        a reference interconnection offer containing the rates, terms, and conditions that the major supplier offers generally to suppliers of public telecommunications services; or

(b)       the terms and conditions of an interconnection agreement in effect.

  1. In addition to the options provided in paragraph 2, each Party shall ensure that suppliers of public telecommunications services of another Party have the opportunity to interconnect their facilities and equipment with those of the major supplier through the negotiation of a new interconnection agreement.

Public Availability of Interconnection Offers and Agreements

  1. Each Party shall make publicly available the applicable procedures for interconnection negotiations with a major supplier in its territory.
  1. Each Party shall provide means for suppliers of another Party to obtain the rates, terms, and conditions necessary for interconnection offered by a major supplier. Those means include, at a minimum, ensuring:

(a)       the public availability of rates, terms and conditions for interconnection with a major supplier set by the telecommunications regulatory body;

(b)        the public availability of interconnection agreements that are in effect between a major supplier in its territory and other suppliers of public telecommunications services in its territory; and

(c)       the public availability of any reference interconnection offer.

Article 18.10:  Provisioning and Pricing of Leased Circuits Services

  1. Each Party shall ensure that a major supplier in its territory provides service suppliers of another Party leased circuits services that are public telecommunications services in a reasonable period of time on terms and conditions, and at rates, that are reasonable and non-discriminatory, and based on a generally available offer.
  1. In carrying out paragraph 1, each Party shall provide its telecommunications regulatory body the authority to require a major supplier in its territory to offer leased circuits services that are public telecommunications services to service suppliers of another Party at capacity-based, cost-oriented prices.

Article 18.11:  Co-Location 8

  1. Subject to paragraphs 2 and 3, each Party shall ensure that a major supplier in its territory provides to suppliers of public telecommunications services of another Party in the Party’s territory physical co-location of equipment necessary for interconnection or access to unbundled network elements based on a generally available offer, on a timely basis, and on terms and conditions and at cost-oriented rates, that are reasonable, non-discriminatory, and transparent.
  1. Where physical co-location is not practical for technical reasons or because of space limitations, each Party shall ensure that a major supplier in its territory provides an alternative solution, such as virtual co-location or some other arrangement that facilitates interconnection or access to unbundled network elements, based on a generally available offer, on a timely basis, and on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory, and transparent.
  1. A Party may determine, in accordance with its laws and regulations, which premises owned or controlled by major suppliers in its territory are subject to paragraphs 1 and 2. When the Party makes this determination, it shall take into account factors such as the state of competition in the market where co-location is required, whether those premises can be substituted in an economically or technically feasible manner in order to provide a competing service, or other specified public interest factors.
  1. If a Party does not require that a major supplier offer co-location at certain premises, it nonetheless shall allow service suppliers to request that those premises be offered for co-location consistent with paragraph 1, without prejudice to the Party’s decision on that a request.

Article 18.12:  Access to Poles, Ducts, Conduits, and Rights-of-Way 9

Each Party shall ensure that a major supplier in its territory provides access, subject to technical feasibility, to poles, ducts, conduits, rights-of-way, and any other structures as determined by the Party, owned or controlled by the major supplier, to suppliers of public telecommunications services of another Party in the Party’s territory on a timely basis, on terms and conditions and at rates, that are reasonable, non-discriminatory, and transparent.

Article 18.13: Submarine Cable Systems

Each Party shall ensure that any major supplier who controls international submarine cable landing stations in the Party’s territory for which there are no economically or technically feasible

8 For the purposes of this Article, a supplier of mobile services is not a major supplier unless a Party determines that the supplier meets the definition of “major supplier” set out in Article 18.1.

9 For the purposes of this Article, a supplier of mobile services is not a major supplier unless a Party determines that the supplier meets the definition of “major supplier” set out in Article 18.1.

alternatives provides access to those landing stations consistent with the provisions of Article 18.9 (Interconnection with Major Suppliers), Article 18.10 (Provisioning and Pricing of Leased Circuits Services by Major Suppliers) and Article 18.11 (Co-Location by Major Suppliers), to public telecommunications suppliers of another Party. 10

Article 18.14:  Conditions for the Supply of Value-Added Services11

  1. The Parties recognize the importance of value-added services to innovation, competition, and consumer welfare. If a Party engages in direct regulation of value-added services, it should not impose on suppliers of value-added services requirements applicable to suppliers of public telecommunications services without due consideration of the legitimate public policy objectives and the technical feasibility of the requirements, and the characteristics of the value-added services at issue.
  1. Pursuant to paragraph 1, each Party shall: (a) Ensure that:

(i)        any licensing, permit, registration, or notification procedure that it adopts or maintains relating to the provision of value-added services is transparent and non-discriminatory, and that applications filed thereunder are processed expeditiously; and

(ii)       information required under that procedure is limited to that necessary to demonstrate that the applicant has the financial solvency to begin providing services or to assess conformity of the applicant’s terminal or other equipment with the Party’s applicable standards or technical regulations; and

(b)        Not require an enterprise in its territory that supplies value-added services to: (i)   supply those services to the public generally;

(ii)       cost-justify its rates for those services; (iii)      file a tariff for those services;

(iv)      connect its networks with any particular customer or network for the supply of those services; or

10 Mexico, based on its evaluation of the state of competition of the Mexican submarine cable systems market, has not applied major supplier-related measures to submarine cable landing stations pursuant to this Article.

11 For greater certainty, this article should not be understood to reflect a Party’s view on whether a service should be categorized as a value-added service or a public telecommunications service.

(v)     conform with any particular standard or technical regulation of the telecommunications regulatory body for connecting to any other network, other than a public telecommunications network.

  1. Notwithstanding paragraphs 2(a)(ii) and 2(b), a Party may take the actions described in paragraphs 2(a)(ii) and 2(b) to remedy a practice of a supplier of value-added services that the Party has found in a particular case to be anticompetitive under its law or regulations, or to otherwise promote competition or safeguard the interests of consumers.

Article 18.15: Flexibility in the Choice of Technology

  1. No Party shall prevent suppliers of public telecommunications services from choosing the technologies they wish to use to supply their services, subject to requirements necessary to satisfy legitimate public policy interests, provided that any measure restricting that choice is not prepared, adopted, or applied in a manner that creates unnecessary obstacles to trade.
  1. For greater certainty, a Party adopting those measures shall do so consistent with Article

18.24 (Transparency).

Article 18.16: Approaches to Regulation

  1. The Parties recognize the value of competitive markets to deliver a wide choice in the supply of telecommunications 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 recognize that regulatory needs and approaches differ market by market, and that each Party may determine how to implement its obligations under this Chapter.
  1. In this respect, the Parties recognize that a Party may:

(a)        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;

(b)        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 telecommunications suppliers that do not own network facilities;12 or

(c)       use any other appropriate means that benefit the long-term interest of end-users.

12 Consistent with this subparagraph, the United States, based on its evaluation of the state of competition of the U.S. commercial mobile market, has not applied major supplier-related measures pursuant to Article 18.5 (Treatment by Major Suppliers of Public Telecommunications Services), Article 18.7 (Resale), Article 18.9 (Interconnection with Major Suppliers), Article 18.11 (Co-Location), or Article 18.12 (Access to Poles, Ducts, Conduits, and Rights-of Way) to the commercial mobile market.

  1. If a Party engages in direct regulation, it may nonetheless forbear, to the extent provided for in its law, from applying that regulation to a service that the Party classifies as a public telecommunications service, if its telecommunications regulatory body determines that:

(a)        enforcement  of  the  regulation  is  not  necessary  to  prevent  unreasonable  or discriminatory practices;

(b)       enforcement of the regulation is not necessary for the protection of consumers; and

(c)        forbearance  is  consistent  with  the  public  interest,  including  promoting  and enhancing competition between suppliers of public telecommunications services.

Article 18.17:  Telecommunications Regulatory Bodies

  1. Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, a supplier of public telecommunications services. With a view to ensuring the independence and impartiality of telecommunications regulatory bodies, each Party shall ensure that its telecommunications regulatory body does not hold a financial interest13 or maintain an operating or management role in any supplier of public telecommunications services.14
  1. Each Party shall ensure that its regulatory decisions and procedures, including decisions and procedures relating to licensing, interconnection with public telecommunications networks and services, tariffs, and assignment or allocation of spectrum for commercial telecommunications services, are impartial with respect to all market participants
  1. Each Party shall ensure that its telecommunications regulatory body has the authority to impose requirements on a major supplier that are additional to or different from requirements imposed on other suppliers in the telecommunications sector.

Article 18.18:  State-Owned Enterprises

No Party shall accord more favorable treatment to a supplier of telecommunications services in its territory than that accorded to a like service supplier of another Party on the basis that the supplier receiving more favorable treatment is owned or controlled by the central level of government of the Party.

13 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 public telecommunications services.

14 For Mexico, the telecommunications regulatory body is autonomous from the Executive Branch of government, is independent regarding its decisions and functioning, and has the purpose of regulating and promoting competition and

Article 18.19:  Universal Services

Each Party has the right to define the kind of universal service obligation it wishes to 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 18.20: Licensing Process

  1. If a Party requires a supplier of public telecommunications services to have a license, the

Party shall make publicly available:

(a)       all the licensing criteria and procedures that it applies;

(b)        the period that it normally requires to reach a decision concerning an application for a license; and

(c)       the terms and conditions of all licenses in effect.

  1. Each Party shall ensure that, on request, an applicant or licensee receives the reasons for the:

(a)       denial of a license;

(b)        imposition of supplier-specific conditions on a license; (c)   revocation of a license; or

(d)       refusal to renew a license.

Article 18.21: Allocation and Use of Scarce 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.
  1. Each Party shall make publicly available the current state of frequency bands allocated and assigned to specific suppliers but retains the right not to provide detailed identification of frequencies that are allocated or assigned for specific government uses.
  1. For greater certainty, a Party’s measures allocating and assigning spectrum and managing frequency are not per se inconsistent with Article 15.5 (CBTS – Market Access) either as it applies to cross-border trade in services or through the operation of Article 15.2 (CBTS – Scope) to an

investor or covered investment of another Party.   Accordingly, each Party retains the right to establish and apply spectrum and frequency management policies that may have the effect of limiting the number of suppliers of public telecommunications services, provided that the Party does so in a manner that is consistent with this Agreement.  This includes the ability to allocate frequency bands, taking into account current and future needs and spectrum availability.

  1. When making a spectrum allocation for commercial telecommunications services, each Party shall endeavor to rely on an open and transparent process that considers the public interest, including the promotion of competition.
  1. Each Party shall endeavor 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, if appropriate, to assign spectrum for commercial use.

Article 18.22: Enforcement

Each Party shall provide its competent authority the authority to enforce the Party’s measures relating to the obligations set out in Article 18.3 (Access and Use), Article 18.4. (Obligations Relating to Suppliers of Public Telecommunications Services), Article 18.5 (Treatment by Major Suppliers of Public Telecommunications Services), Article 18.6 (Competitive Safeguards), Article 18.7 (Resale), Article 18.8 (Unbundling of Network Elements), Article 18.9 (Interconnection with Major Suppliers), Article 18.10 (Provisioning and Pricing of Leased Circuits Services), Article 18.11 (Co-Location), Article 18.12 (Access to Poles, Ducts, Conduits and Rights-of-way) and Article 18.13 (Submarine Cable Systems).  That authority shall include the ability to impose effective sanctions, which may include financial penalties, injunctive relief (on an interim or final basis), corrective orders, or the modification, suspension, or revocation of licenses.

Article 18.23: Resolution of Disputes

  1. Further to Article 29.3 (Publication and Administration – Administrative Proceedings) and

Article 29.4 ( Publication and Administration – Review and Appeal), each Party shall ensure that:

Recourse

(a)        enterprises have recourse to the telecommunications regulatory body of the Party to resolve disputes with a supplier of public telecommunications services regarding the Party’s measures relating to matters set out in Article 18.3 (Access and Use), Article 18.4. (Obligations Relating to Suppliers of Public Telecommunications Services),  Article    18.5    (Treatment    by    Major    Suppliers    of    Public Telecommunications  Services),  Article  18.6  (Competitive  Safeguards),  Article

18.7  (Resale),  Article  18.8  (Unbundling  of  Network  Elements),  Article  18.9

(Interconnection with Major Suppliers), Article 18.10 (Provisioning and Pricing of Leased Circuits Services), Article 18.11 (Co-Location), Article 18.12 (Access to Poles, Ducts, Conduits and Rights-of-way) and Article 18.13 (Submarine Cable Systems);

(b)        if the telecommunications regulatory body declines to initiate any action on a request to resolve a dispute, it shall, on request, provide a written explanation for its decision within a reasonable period of time;15

(c)        suppliers  of  public  telecommunications  services  of  another  Party  that  have requested interconnection with a major supplier in the Party’s territory have, within a reasonable and publicly specified period of time after the supplier requests interconnection, recourse to its telecommunications regulatory body to resolve disputes regarding the appropriate terms, conditions and rates for interconnection with that major supplier; and

Reconsideration16

(d)       any  enterprise  whose  legally  protected  interests  are  adversely  affected  by  a determination or decision of the Party’s telecommunications regulatory body may appeal to or petition the body to reconsider that determination or decision. No Party shall permit the making of an application for reconsideration to constitute grounds for non-compliance with the determination or decision of the telecommunications regulatory body, unless the regulatory body issues an order that the determination or decision not be enforced while the proceeding is pending. A Party may limit the circumstances under which reconsideration is available, in accordance with its laws and regulations.

Judicial Review

  1. No Party shall 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 the judicial body issues an order that the determination or decision not be enforced while the proceeding is pending.

15 For the United States, this subparagraph applies only to the national regulatory body.

16  This paragraph does not apply to Mexico.   For Mexico, the general rules, acts or omissions of the Federal

Telecommunications Institute may only be challenged through an indirect amparo trial before federal courts specialized in competition, broadcasting and telecommunications and shall not be subject to injunction (suspensión).

Article 18.24: Transparency

  1. Further to Article 29.2 (Publication and Administration – Publication), each Party shall ensure that when its telecommunications regulatory body seeks input 17  for a proposal for a regulation, that body shall:

(a)       make the proposal public or otherwise available to any interested persons; (b)       include an explanation of the purpose of and reasons for the proposal;

(c)        provide interested persons with adequate public notice of the ability to comment and reasonable opportunity for such comment;

(d)       to the extent practicable, make publicly available all relevant comments filed with it; and

(e)        respond to all significant and relevant issues raised in comments filed, in the course of issuance of the final regulation.18

  1. Further to Article 29.2 (Publication and Administration – Publication), each Party shall ensure that its measures relating to public telecommunications services are made publicly available, including:

(a)       tariffs and other terms and conditions of service; (b)       specifications of technical interfaces;

(c)        conditions    for    attaching    terminal    or    other    equipment    to    the    public telecommunications network;

(d)       licensing, permit, registration, or notification requirements, if any;

(e)        general procedures relating to resolution of telecommunications disputes provided for in Article 18.23 (Resolution of Telecommunications Disputes); and

(f)        any  measures  of  the  telecommunications  regulatory  body  if  the  government delegates to other bodies the responsibility for preparing, amending, and adopting standards-related measures affecting access and use.

17 For greater certainty, seeking input does not include internal governmental deliberations.

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

Article 18.25: International Roaming Services

  1. The Parties shall endeavor to cooperate on promoting transparent and reasonable rates for international mobile roaming services that can help promote the growth of trade among the Parties and enhance consumer welfare.
  1. 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:

(a)       ensuring that information regarding retail rates is easily accessible to consumers;

and

(b)        minimizing  impediments  to  the  use  of  technological  alternatives  to  roaming, whereby consumers when visiting the territory of a Party from the territory of another Party can access telecommunications services using the device of their choice.

Article 18.26: Relation 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.

Article 18.27: Committee on Telecommunications

  1. The Parties hereby establish a Committee on Telecommunications (Committee) composed of government representatives of each Party.
  1. The Committee shall:

(a)        review and monitor the implementation and operation of this Chapter, with a view to ensuring the effective implementation of the Chapter by enabling responsiveness to technological and regulatory developments in telecommunications to ensure the continuing relevance of this Chapter to Parties, service suppliers and end users;

(b)        discuss any issues related to this Chapter and any other issues relevant to the telecommunications sector as may be decided by the Parties;

(c)       report to the Commission on the findings and the outcomes of discussions of the

Committee; and

(d)       carry out other functions delegated to it by the Commission.

  1. The Committee shall meet at such venues and times as the Parties may decide.
  1. The Parties may decide to invite representatives of relevant entities other than the Parties, including representatives of private sector entities, having the necessary expertise relevant to the issues to be discussed, to attend meetings of the Committee.

Annex A – Rural Telephone Suppliers

United States

The United States may exempt rural local exchange carriers and rural telephone companies, as defined, respectively, in sections 251(f)(2) and 3(44) of the Communications Act of 1934, as amended, (47 U.S.C. Section 251(f)(2) and Section 153(44)), from the obligations contained in Article 18.4.6 (Obligations Relating to Suppliers of Public Telecommunications Services – Number Portability), Article 18.4.7 (Obligations Relating to Suppliers of Public Telecommunications Services – Dialing Parity), Article 18.7 (Resale), Article 18.8 (Unbundling of Network Elements), Article 18.9 (Interconnection with Major Suppliers), and Article 18.11 (Co- location).

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