Provisions Regulating the Integration and Liberalization of the Trade
in Telecommunications Services in the Andean Community
THE COMMISSION OF THE ANDEAN COMMUNITY,
Items g) of the first paragraph and f) of the second paragraph of Article
3 and Chaper XI of the Cartagena Agreement, Decisions
439 and 440, and General Secretariat Proposal 29;
The Guidelines of the Presidents of the Andean Community Member Countries orient the development of the sector toward the liberalization and expansion of the trade in services;
The Andean Community Commission through
Decision 439, approved the General Framework of Principles and Provisions for Liberalizing the Trade in Services, which promotes the creation of an Andean Common Market;
The Andean Community Commission, having received the recommendations from the Telecommunications Authorities of the Member Countries, ordered the preparation of a draft Decision aimed at regulating the liberalization of the trade in telecommunications services in the Subregion;
According to the terms and conditions of the commitments established in
Decision 439, the Member Countries should encourage the strengthening and diversification of the services and harmonize national telecommunications policies in aspects that require it;
In Resolution CAATEL VII.EX – 49, the Telecommunications Authorities of the Member Countries resolved to attribute maximum priority to the
intra-subregional integration of Andean telecommunications, by liberalizing the respective trade in services within the context of
Decision 439 and adopted the methodology and timetable to be used in integrating and liberalizing the trade in telecommunications services in the Andean Community;
The consolidation of the liberalization of the trade in telecommunications services in the Andean Community contributes toward increasing competitiveness, diversifying the export capacity of those services, and strengthening the Community position, in order to gain an effective position within the global market;
To approve these
Provisions that Regulate the Integration and Liberalization of the Trade in Telecommunications Services in the Andean Community
Article 1.- Objective
The objective of this Decision is to promote the progressive liberalization of the trade in public telecommunications services in order to create an Andean Common Market in services, thereby contributing to the integration of the Andean subregion.
The Decision shall have the following specific objectives, as well:
a) To remove restrictions on and obstacles to the free trade in public telecommunication services, in keeping with the timetable established in this Decision;
b) To foster the harmonization of the necessary provisions for creating the Andean Common Market in telecommunications;
c) To propose common definitions for the telecommunications services in the Member Countries; and
d) To promote investment in telecommunications services in the Member Countries.
Article 2.- Definitions
For purposes of this Decision, the terms below shall have the following meanings:
Confirmation of Authorization Certificates in the Andean Community: An administrative act through which the competent Telecommunications Authority of a Member Country authorizes a supplier from another Member Country to provide given services in its territory under the conditions stipulated in the provisions of the Member Country granting that authorization.
Any link-up with suppliers that provide public telecommunications transmission networks or services for the purpose of allowing the users of one supplier to communicate with the users of another supplier and to have access to the services supplied by another provider with regard to which specific commitments apply.
Essential installations: Any installation of a public telecommunications transmission network or service:
a) That is supplied exclusively or predominantly by a single supplier or by a small number of suppliers; and
b) Whose replacement with a view to the provision of a service is not feasible either economically or technically.
National Provisions: Laws, Rules, Regulations and Provisions issued by the Competent National Authority of each of the Member Countries.
Key Supplier: Supplier that, as defined by the Competent National Authority, has the capacity to exert an important influence on the conditions for participation, from the viewpoint of prices and supply, in a given public telecommunications transmission service market due to:
a) Its control of access to essential installations; or
b) The use of its position in the market
Service Supplier, Operator or Provider: A natural or artificial person authorized by the Competent National Authority to supply telecommunications services to the public.
Public Telecommunications Transport Network: Public telecommunications infrastructure that allows for telecommunication between two or more defined terminal points of a network.
Telecommunications Services: A series of services offered by a supplier to satisfy user needs and resting on telecommunications networks.
Public Telecommunications Transmission Service: Any telecommunications transmission service that a Member Country orders, expressly or in fact, and that is offered to the general public. Such services may include, among others: telegraph, telephone, telex and data transmission characterized by transmission in real time of information provided by the users, between two or more points, without any change from one end to the other in the form or content of that information.
Telecommunications: Any transmission or reception of signs, written signals, images, sounds, data or information of any kind over physical lines and through radioelectric , optical or other electromagnetic means.
Authorization Certificate: Administrative act through which the Competent National authority of a Member Country authorizes a supplier to provide telecommunications services or to install and operate networks.
User: A natural or artificial person that is a consumer of telecommunications services.
Other definitions: This Decision shall consult the contents of the Regulations of the International Telecommunication Union – ITU and
Decision 439 with regard to all other terms and definitions.
SCOPE, SPHERE OF APPLICATION, PRINCIPLES AND TIMETABLE
Article 3.- Scope
This Decision covers all telecommunications services and all means used to provide them, except for sound radio broadcasting and television services.
Article 4.- Sphere of Application
This Decision is applicable to
a) All measures issued by Member Countries that affect access to public telecommunications transmission networks and services and their use by persons of Member Countries;
b) Measures adopted or maintained by a Member Country that affect the provision and trade in telecommunications services;
c) Measures for standardization with respect to the interconnection of equipment with public telecommunications transmission networks.
No provision contained in this Decision shall be interpreted as:
a) Obliging a Member Country to authorize a service supplier from another Member country to establish, set up, acquire, rent, operate or supply telecommunications networks or services other than those specified in article 3 of this Decision;
b) Obliging a Member Country to establish, set up, acquire, rent, operate or supply telecommunications networks or services that are not offered to the general public, or having that Member Country, in turn, demand that a supplier under its jurisdiction do so;
c) Limiting or restricting the free competition established in each of the Member Countries;
d) Granting smaller benefits than those the national provisions of the Member Countries would have offered.
Article 5.- Principles and Commitments
The provision of telecommunications services between Member Countries is grounded in the following principles and commitments established in
Decision 439: access to the market, article 6; most-favored-nation treatment, article 7; national treatment, article 8; transparency, article 9; and status quo, article 10, as well as the rights of the final user, in the terms established in this Decision, and the elimination of restrictive measures that are contrary to the principles stipulated in this article.
Article 6.- Liberalization and Integration
The trade in telecommunications services in the Andean Community is carried out under a regime of liberalization and integration, through the elimination of restrictive measures that are contrary to the principles of access to the market and national treatment.
Article 7.- Liberalization Timetable
Member Countries that have not yet completed the liberalization process referred to in the previous article shall do so in keeping with the following timetable:
a) First Stage:
All restrictive measures concerning telecommunications services other than basic local, national and international long-distance, and mobile land telephony shall be eliminated as of January 1, 2000.
b) Second Stage
All measures restricting all telecommunications services, including basic local, national and international long-distance, and mobile land telephony, shall be eliminated as of January 1, 2002.
ACCESS TO AND USE OF PUBLIC TELECOMMUNICATIONS
NETWORKS AND SERVICES
Article 8.-Access to and use of public telecommunications transmission networks and services
Each Member Country shall ensure that all suppliers from other Member Countries are given national treatment in their access to public telecommunications transmission networks and services offered in its territory and in their use to supply any of the services cited in article 3 of this Decision.
Each Member Country shall ensure that the suppliers of services from other Member Countries are given access to any public telecommunications transmission network or service offered within its boundaries, including rented circuits; also that they are able to use that network or service and that, to these ends, the suppliers shall be allowed to do the following, without prejudice to the stipulation of numeral 5 of this article:
Buy or sell and interconnect equipment that can interface with the public telecommunications transmission network and that the supplier needs to provide its services:
b) Use the operational protocols the service provider chooses, in order to supply any service, except as needed to ensure the availability to the general public of the public telecommunications transmission networks and services.
A Member Country may take the necessary measures for guaranteeing the security and confidential nature of the messages and for protecting the privacy of the communications of the users of the public telecommunications networks or services, provided that those measures are not applied in such a way as to constitute a means of arbitrary or unjustifiable discrimination or a concealed restriction on the trade in services.
Each Member Country shall give its assurance that no conditions shall be imposed on access to public telecommunications transmission networks and services, except those that are needed for:
a) Safeguarding the responsibilities of the providers of the public telecommunications transmission networks and services with regard to those public services, particularly their capacity to make their networks or services available to the general public;
b) Protecting the technical integrity of the public telecommunications transmission networks or services;
c) Ensuring that the providers of services from other Member Countries supply only the services that are authorized in keeping with the stipulations of this Decision.
Provided that the criteria established in the previous numeral are satisfied, the conditions for access to and the use of public telecommunications transmission networks and services could include:
a) The prescription to use specified technical interfaces, including interface protocols, for the interconnection with those networks and services;
b) Prescriptions for the inter-operation of those services, when necessary;
c) The confirmation of equipment for interfacing with the network and technical prescriptions with regard to the interconnection of that equipment with those networks;
d) Notification, registration, and licenses, in the terms specified in this Decision.
RULES FOR CONFIRMING AUTHORIZATION CERTIFICATES AND AUTHORIZATIONS
Article 9.- General Provisions
The Andean Community Member Countries are committed, in keeping with article 6 of this Decision, to facilitating the provision of services in their territories by Andean telecommunication services providers that have applied for such in keeping with the provisions and procedures established for that purpose and that show themselves to be authorized service suppliers under a certificate conferred in another of the Member Countries and that have obtained the confirmation of the authorization certificate.
Article 10.- Conditions for providing Telecommunications Services
The Member Countries shall guarantee that:
a) Applications for confirmation of authorization certificates to provide telecommunications services be decided by the Competent National Authorities in keeping with the national provisions in effect in each Member Country. If the national provisions do not provide for tenders or special competitive bidding, the period for reaching a decision shall not exceed ninety (90) calendar days, as of the date on which the request was received by the Competent National Authority responsible for granting the confirmation.
b) National procedures for granting concessions, licenses, permits, authorizations, registrations, and notifications with regard to the provision of telecommunications services by suppliers whose certificate has been granted through the confirmation procedure, shall be transparent and non-discriminatory;
c) In cases where it is necessary to participate in tenders or special biddings in order to obtain a concession, license, authorization or permit, the provider requesting the confirmation of the authorization certificate should take part in those proceedings under the same conditions as the other bidders.
Article 11.- Scope of the Confirmation of the Authorization certificates
The confirmation of authorization certificates implies the authorization to provide services under the conditions established by the national provisions of the country granting that confirmation, and does not express the recognition of the conditions, rights and obligations established in the authorization certificate in the country that granted it, and in that sense:
a) The definition of the services, their scope, the conditions for obtaining the authorization certificates, and the rights and obligations assumed in order to provide those services, are those established, defined and specified in the national provisions of the Member Country confirming the authorization certificate.
b) An application for confirmation submitted to a Member Country and its granting entail the fulfillment of the national provisions and of the requirements, conditions, rights, and obligations that this Member Country demands of or acknowledges to its nationals.
Article 12. – Denial of the Confirmation of the Authorization certificate
The Competent National Authorities shall inform the applicant, within a period of no more than ninety (90) calendar days, of the reasons why its application has been denied. That denial may only be based on grounds that are expressly established in each Member Country's national provisions and shall be subject to the motions for rejection stipulated in those provisions.
Article 13.- Obligations of the suppliers of Telecommunications Services
The suppliers of telecommunications services agree to do the following in the Member Countries:
a) Obtain the authorization certificate or its confirmation to provide the telecommunications services;
b) Sign the contracts and other agreements deriving from the certificate that will allow them to render their services in accordance with the procedures in effect in the Member Countries;
c) Furnish the telecommunications services in a non-discriminatory way;
d) Sign interconnection contracts to base their services on telecommunications networks that fulfill the agreed upon technical and economic conditions, when applicable; and
e) In general, comply with the national provisions of the Member Country in which it wishes to provide those services.
Article 14.- Scope of provision of telecommunications services in the subregion
Suppliers of services that obtain the confirmation of an authorization certificate in application of this Decision, are authorized to provide the telecommunications services contained in that confirmation within the territory of the Member Country that granted that confirmation.
Article 15.- Competent Authorities for Confirming Authorization certificates
The National telecommunications Authority that is competent to grant authorization certificates in each Member Country is responsible for confirming the authorization certificates to provide and operate telecommunications services, following the procedure established in this Decision.
Article 16.- Application for Confirming Authorization certificates
The supplier of services from a Member Country that is interested in providing telecommunications services in another Member Country or in other Member Countries and that decides on the confirmation of its authorization certificate, may apply for that confirmation via one of the following alternatives:
a) By submitting its application to the Competent National Authority that granted it the authorization certificate to provide services. That authority shall notify the Chairman of CAATEL about the application of the interested party so that it may be entered in the data base, and shall transmit it to the Competent National Authority or Authorities of the Country or Member Countries where the service supplier wishes to confirm its authorization certificate;
b) By submitting its application directly to the Office of the Chairman of CAATEL. The Chairman of CAATEL shall enter the application in its data base and shall proceed to remit it to the Competent National Authority or Authorities of the Member Country or Countries where the service supplier wishes to confirm its authorization certificate; or
c) By submitting its application directly to the Competent National Authority or Authorities of the Member Country or Countries where the service supplier wishes to confirm its authorization certificate. That Competent National Authority or Authorities shall notify the Chairman of CAATEL about the application of the interested party, so that it may be entered in the data base.
Article 17.- Requirements for the application for confirmation of the Authorization certificate
The applications for confirming an authorization certificate to provide telecommunications services should contain:
Identification of the supplier requesting that confirmation, to which end the supplier should submit the certified copy of the duly registered instrument of its incorporation, as well as a certified copy of the instrument appointing its legal representative;
Identification of the Competent National Authority remitting the application to the Chairman of CAATEL, if applicable;
Presentation of the certified copy of the authorization certificate, by the Competent National Authority that issued it, and any amendments to that document;
Certification by the Competent National telecommunications Authority that the services included in the application for confirmation of the authorization certificate are in operation in its respective territory;
Identification of the services for which confirmation of the authorization certificates is being requested;
Identification of the scarce resources to be used in providing the service, in accordance with the national provisions in effect;
Technical project including, among other things, a description of the topography and the general characteristics of the network to be used;
Statement of the commitment of the interested party to submit to the national provisions of the Member Country where it wishes to provide its services, as well as to the principles and provisions for liberalizing the Andean Community's trade in services, contained in
Decision 439 and in this Decision;
Commitment to a minimum expansion plan to be carried out over a given period of time.
Article 18.- Harmonization of the requirements and procedures for granting Authorization certificates
The Member Countries shall work toward the adjustment and consequent harmonization of the necessary requirements and procedures for granting authorization certificates.
Article 19.- Validity of the Confirmation of the Authorization certificate
The Competent National Authority of the Member Country granting the confirmation shall confer it for the same period of validity as the authorization certificate, provided that this is no longer that the maximum period allowed by national provisions, in which case the validity shall be adjusted to those regulations.
Article 20.- Provision of Services under authorization certificates obtained through the confirmation process
The service supplier may offer only those services which it has been authorized to provide and the supply of those services shall be subject to the provisions, principles and procedures indicated in this Decision, as well as in
Decision 439 and the national provisions in effect.
Without prejudice to the application of the national provisions, any telecommunications Administration or Competent National telecommunications Authority of the Member Countries may, on its own initiative or at the request of a party, ask the Administration that initially granted the authorization certificate to investigate irregularities in the exercise of the rights acknowledged to the service supplier whose authorization was granted through confirmation of the authorization certificate, as well as to impose any punishments that may be in order.
Article 21.- Establishment of telecommunications networks
The service providers whose authorization certificates have been confirmed also have the possibility of setting up optical, wired and wireless networks that are needed in the respective territories to provide the service under the confirmed authorization certificate, with no further requirements than those stipulated in this Decision and subject to the same rights, obligations and guarantees that each Member Country acknowledges to or demands from its national service suppliers.
Article 22.- Allocation and Utilization of Scarce Resources
Any procedure for obtaining permits to use the radio spectrum, including the up-links and down-links of the spatial segments duly coordinated with the respective Member Countries, as well as to use the signal numbering and codes, should be carried out in a timely, objective, transparent and non-discriminatory way.
To this end, applications for permits to use the radio spectrum, numbering, rights of passage, and signaling codes, should be subject to and comply with national provisions and the procedures established in the respective Member Countries, and any economic considerations involved should be paid.
Member Countries may not discriminate against or give service operators whose authorization has been obtained via a confirmation procedure, treatment that is different from that they give their national operators in their corresponding territories, in regard to the allocation and use of the radio spectrum, numbering, rights of passage and signaling codes.
Article 23.- Harmonization in the treatment of scarce resources
Without prejudice to such national provisions as each Member Country may establish, these countries, through
CAATEL, shall take actions geared toward harmonizing allocations of the radio spectrum, numbering and numerical carriability in the Andean
subregion, and shall participate in coordination, as merited, in works carried out in this field in the International Telecommunication Union – ITU and the Inter-American Telecommunications Commission –
CITEL, among others.
Article 24.- Payment of the economic considerations
The confirmation of authorization certificates bears with it the obligation of the service supplier to pay the same economic considerations, such as duties, tariffs, taxes and lease payments, and to make investments or other obligations of that nature that each of the Member Countries establishes for its nationals in relation to the provision of the telecommunications services permitted by the authorization certificate that has been confirmed.
MEASURES REGARDING THE STANDARDIZATION AND CONFIRMATION
OF TERMINAL EQUIPMENT
Article 25.- Standardization of Terminal Equipment
The Member Countries give their assurance that the standardization measures with regard to the interconnection of terminal equipment to the public telecommunications networks shall include only those that are needed for:
Preventing damage to public telecommunications networks;
Avoiding the technical disturbance of public telecommunications networks or their deterioration;
Avoiding harmful interference in the radio spectrum and ensuring compatibility with other uses;
Preventing the malfunctioning of the invoicing equipment; and
Guaranteeing the user's safety and access to public telecommunications networks or services.
Article 26.- Need to Confirm Terminal Equipment
The Member Countries may need to have terminal equipment confirmed when it is intended for connection by physical or electromagnetic means to the public telecommunications network, provided that the criteria for approval are compatible with the stipulations of the previous article.
The Member Countries may also require verification of the compliance with the International Telecommunications Union's recommendations regarding terminal equipment that will be using the radio spectrum, whether or not it will be interconnected with the public network.
Article 27.- Principles and Procedures for Certifying and Confirming Terminal Equipment
The Member Countries should do the following with regard to the certification and confirmation of terminal equipment:
Ensure that their procedures for evaluating conformity are transparent and non-discriminatory and that the applications that are submitted for that purpose are rapidly processed;
Permit an agency for Evaluating Conformity accredited by the Competent National Authority of any Member Country, to evaluate the terminal equipment that is to be interconnected with the public telecommunications network, in keeping with its certification procedures, without prejudice to the right of the national authority that grants the confirmation of the equipment to review the accuracy and integrity of the test results, and the procedure;
Guarantee that the measures it adopts or maintains to authorize the suppliers of telecommunications equipment and their agents are non-discriminatory;
In general, be governed by the technical recommendations of the International Telecommunication Union – ITU and those resulting from the harmonization of the standards of the Inter-American Telecommunications Commission –
PROTECTION OF FREE COMPETITION
Article 28.- Measures for guaranteeing competition
Without prejudice to the application, at its own decision or at the request of a party, of the stipulations of Decision 285, which contain the "Provisions for preventing or correcting distortions in competition caused by practices restricting free competition," each Member Country shall adopt or maintain appropriate measures for impeding uncompetitive practices by suppliers that provide telecommunications services.
Article 29.- Uncompetitive practices
The practices referred to in the previous article shall include the following in particular:
a) Carrying out uncompetitive crossed subsidy activities;
b) Using information obtained from competitors for uncompetitive purposes; and
c) Not making duly available to the other service suppliers, technical information about the essential installations and pertinent commercial information they need to provide their services.
PRINCIPLES REGARDING THE INTERCONNECTION
Article 30.- Conditions for the Interconnection
All suppliers of public telecommunications transmission services are obliged to interconnect their networks with those of suppliers that have confirmed their authorization certificates in accordance with the national interconnection provisions of each Member Country.
The interconnection should take place:
In terms and under conditions that are non-discriminatory, including the provisions, technical specifications and charges. With a quality that is no less favorable than that provided to its own similar services and to similar services supplied by affiliated or associated companies and by non-affiliated companies;
b) With interconnection fees that are:
Transparent and reasonable;
2. Cost-oriented and that take economic viability into consideration;
3. Sufficiently broken down so that the supplier requesting the interconnection does not have to pay for network elements or installations that it does not need to provide the service.
On a timely basis;
d) At its request, at points additional to the network termination points, offered to most users and subject to charges that reflect the cost of the construction of the necessary additional facilities.
If a supplier denies the interconnection, the Competent National Authority shall be the one to decide whether the legal basis for this is well-founded.
Article 31.- Public availability of the procedures for the interconnection
The Competent National Authority and the suppliers shall make available to the public the procedures for the interconnection and the negotiating terms, in accordance with each Member Country's national provisions.
Article 32.- Conditions among suppliers
If a supplier requesting an interconnection considers that it is being treated in a way that violates the provisions or the principles of interconnection or of free competition, it may appeal to the respective National Authorities on the subject involved, which shall resolve the matter in keeping with national provisions.
Article 33.- Harmonization of provisions on interconnection
The Andean Community Member Countries shall work toward harmonizing the requirements, procedures and provisions regarding interconnection.
Article 34.- Transparency
Each Member Country shall make available to the public and to other Member Countries its laws, regulations, procedures and administrative resolutions for general application that refer to any aspect covered in this Decision; it shall also ensure that the pertinent information about the following matters is available to the public:
Tariffs and other terms and conditions of the public telecommunications transmission service;
Specifications on the technical interfaces with those services and networks;
Information about the authorities responsible for preparing and adopting the measures for standardization that affect that access and use;
Conditions applicable to the interconnection of terminal or other kinds of equipment, to the public telecommunications transmission network.
Article 35.- Universal Service
All of the Member Countries have a right to define the type of Universal Service obligation they wish to maintain. Obligations of this kind shall not be considered of themselves to be uncompetitive, provided they are established in a transparent and nondiscriminatory way.
RIGHTS OF THE FINAL USER
Article 36.- Rights of the Final User
The final users of telecommunications services in the Member Countries shall be entitled to equal and nondiscriminatory treatment, with a free choice of the service supplier and a knowledge of the rates charged.
The Member Countries shall make an effort to have their national provisions on the rights of final users incorporate the principles cited above.
Article 37.- Relationship with international organizations and agreements
The Member Countries recognize:
a) The importance of international provisions for the worldwide compatibility and interoperation of telecommunications networks and services and agree to promote the implementation of those provisions and to participate in a coordinated way in the work of the competent international organizations, among them the International Telecommunication Union – ITU and the Inter-American Telecommunications Commission –
b) The part played by the organizations, intergovernmental agreements, and the private sector in achieving the operation of national and world telecommunications services, particularly the International Telecommunication Union – ITU and the World Trade Organization –
First.- For the purposes referred to in articles 1 and 18 of this Decision, the Andean Committee of Telecommunications Authorities – CAATEL shall present, within a period not to exceed twelve (12) months after this Decision enters into effect, recommendations for harmonizing the requirements and the procedures for granting authorization certificates. It shall also propose common definitions for the telecommunications services in the Member Countries.
Second.- For the purposes referred to in article 33 of this Decision, the Andean Committee of Telecommunications Authorities – CAATEL shall propose, within a period not to exceed twelve (12) months after this Decision enters into effect, Common Provisions on Interconnection, which shall be approved by Resolution of the Andean Community General Secretariat.
Third.- For the purposes referred to in article 23 of this Decision, CAATEL shall draw up, within a period not to exceed twelve (12) months after this Decision enters into effect, a working program for establishing the recommendations for harmonizing the radio spectrum, numbering and numerical
Fourth.- Bolivia and Ecuador, because of the regime of exclusivity they enjoy by law and under concession contracts, shall not apply to the following services the timetable for liberalizing the trade in telecommunications services established in article 7 of this Decision:
Bolivia: Carrier services and services of data transmission via packet switching, up until November 27, 2001.
Ecuador: Local, national and international telephony, carrier services, including the rent of wired and wireless lines and circuits, telegraphy and telex, in keeping with the definitions of the national provisions regarding those services. Later on, Ecuador shall report the date on which it will liberalize the trade in those services, as provided for in
Decision 439 .
Consequently, Bolivia and Ecuador shall not benefit from the liberalization of the cited services resulting from the implementation of this Decision so long as those measures are in effect.
The Telecommunications Authorities of the Member Countries shall meet within the framework of CAATEL, by June 30, 2001 at the latest, in order to review the list of services whose trade Ecuador may liberalize during the second stage of the timetable.
Fifth.- Compliance with the First, Second, and Third Temporary Provisions is not a prerequisite for the full implementation of the provisions contained in this Decision.
Promulgated in the city of Cartagena de Indias, Colombia on the twenty-fifth of May of nineteen ninety-nine.