The multilateral rules on access to telecommunications

Telecommunications Policy

Volumn 20, Issue 2, 1996, Pages 89-99

  Tuthill, Lee ^a  

^a WORLD TRADE ORGANIZATION   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

COMPETITION; MARKETING; PUBLIC POLICY; TELECOMMUNICATION NETWORKS; TELECOMMUNICATION SERVICES;

GENERAL AGREEMENT ON TRADE IN SERVICES; MULTILATERAL RULES;

TELECOMMUNICATION;

EID: 0030105332     PISSN: 03085961     EISSN: None     Source Type: Journal    
DOI: 10.1016/0308-5961(95)00062-3     Document Type: Article

References (39)

1. Cronin, F J, Colleran, E K, Herbert, P L, and Lewitzky, S Telecommunications and growth' Telecommunications Policy 1993 (December) 662
2. The objectives of the Annex explicitly recognize telecommunications' 'dual role as a distinct sector of economic activity and as the underlying transport means for other economic activities'.
3. A 'sectoral testing exercise' was conducted in which papers outlining many trade and regulatory characteristics of different sectors were reviewed. Telecommunications was covered in Trade in Telecommunications Services, Note by the Secretariat (UR Doc No MTN.GNS/W/52, 19 May 1989).
4. Note on the Meeting of 7-11 May 1990 (UR Doc No MTN.GNS/33, 8 June 1990), p 23
5. The modes of supply are known as consumption abroad, commercial presence and movement of natural persons, and defined in GATS Article I, paragraph 2. Cross-border supply is there defined as the supply of a service 'from the territory of one Member into the territory of another Member'. Thus, no physical presence of the supplier is involved.
6. Communication from the United States, Annex: Access to and Use of Services of Public Telecommunications Transport Services (UR Doc No. MTN.GNS/W/97, 23 March 1990)
7. Non-papers containing annex proposals were presented by the European Community, Japan and Korea. A group of developing countries jointly presented two annex proposals; one addressed telecommunications services, Communication from Cameroon, Egypt, India and Nigeria, Sectoral Annotation on Telecommunication Services (UR Doc No MTN.GNS/TEU W/1, 9 July 1990), and the other addressed the sector as a mode of supply, Commission from Cameroon, Egypt, India and Nigeria, Annex on Telecommunications Mode of Delivery (UR Doc No MTN.GNS/ TEL7W/2, 9 July 1990).
8. There are also sector-specific rules in an Annex on Financial Services, the most salient feature of which is an exemption from GATS rules for measures taken for prudential reasons, and in an Annex on Air Tranport, in which the sector, ie landing rights, is essentially carved out of the GATS for the time-being. 9 Early drafts of a compromise Annex text were structured as annotations making explicit reference to these Articles of the GATS. Later drafts were not structured in this manner. The references to the Articles were deleted not as irrelevant, but as unnecessary.
9. Article VI, paragraph 1
10. Paragraph 4 of Article VI calls for a work programme by the Services Council to develop disciplines, where necessary, that aim to ensure that such measures are based on objective and transparent criteria and not more burdensome than necessary, and that licensing procedures do not act as a restriction on trade. Paragraph 5 of Article VI requires that, pending the entry into force of any such disciplines, Members must not institute any new practices that are inconsistent with the aims of the work programme. The Council has recently initiated this work programme, beginning with professional services.
11. Article VIII was diluted by developing countries wary of precipitous efforts to force dismantling of often politically sensitive state monopolies, and Article IX was emasculated by industrialized countries resistant to subjecting competition law to international scrutiny.
12. Trade in Telecommunications Services: Note by the Secretariat (UR Doc No MTN.GNS/W/52, 19 May 1989), p 10
13. Other sections of the Annex, which are not the focus of this paper, address requirements to make information related to access and use publicly available, technical cooperation on telecommunications for developing countries, and relations with other international organizations that deal with the sector.
14. In this paper, the term 'public basic telecommunications' is used as shorthand to refer to 'public telecommunications transport networks and services'.
15. Annex paragraph 5(a)
16. GATS Article II, paragraph 1
17. The GATS defines national treatment as the extension of treatment to foreign services and service suppliers that is no less favourable than that extended to domestic services and services suppliers. Unlike mfn treatment, national treatment is not a general obligation of the GATS but is a commitment contained in Members' services schedules and applies to the degree indicated therein.
18. Annex paragraph 5(b)
19. Ibid
20. Annex paragraph 5(c), subject to an exception in paragraph 5(d) that permits measures necessary to ensure the security and confidentiality of messages, so long as 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.
21. Extended negotiations on the scheduling of GATS commitments on competition in the supply of basic telecommunications are now being conducted with a deadline of April 1996 for completion.
22. Trade in Telecommunications Services: Note by the Secretariat (UR Doc No MTN.GNS/W/52, 19 May 1989) p 7
23. Annex paragraph 5(e)
24. Annex paragraph 5(f)
25. Most such obligations are found in the Articles of GATS Part III on General Obligations and Disciplines
26. Scheduling of Initial Commitments in Trade in Services: Explanatory Note (UR Doc No. MTN.GNS/W/164, 3 September 1993) p 2
27. An exception is available for developing countries. They may take resource to para 5.8 of the Annex, which allows them to depart from the access and use obligations of section 5. The disciplines applying to such departures are that they must be clearly indicated in schedules, reasonable, and 'necessary' to strengthen the domestic telecommunciations infrastructure and services or increase the participation in international telecommunications trade. No such entries were made in schedules by developing countries during the Uruguay Round.
28. Annex paragraphs 2(c)(i) and 5(e)(iii) make this distinction clear. GATS Articles XVI (market access), XVII (national treatment) and XVIII (additional commitments) define the commitments to be entered in schedules, and Article XIX lays out the process of negotiating on commitments.
29. As defined in the Annex, section 3(b), ' "Public telecommunications transport service" means any telecommunications transport service required, explicitly or in effect, by a Member to be offered to the public generally. Such services may include, inter allia, telegraph, telephone, telex, and data transmission typically involving the real-time 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.'
30. As defined in the Annex, section 3(c), ' "Public telecommunications transport network" means the public telecommunications infrastructure which permits telecommunications between and among defined network termination points.'
31. As defined by derivation from the Annex definition of 'basic' rather than national regulatory definitions, which may differ.
32. Article XXVII (definitions) para (a) says that 'measure' means any measure by a Member, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form. Article 1:3 (a) 'measures by Members' means measures taken by (1 ) central, regional or local governments and authorities; and (2) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities.
33. Art XVII (definitions), para (c) says that 'measures by Members affecting trade in services' include measures in respect of (1) the purchase, payment or use of a service; (2) the access to and use of, in connection with the supply of a service, services that are required by those Members to be offered to the public generally; and (3) the presence, including commercial presence, of persons of a Member for the supply of a service in the territory of another Member. Para (b) says that 'supply of a service' includes the production, distribution, marketing, sale and delivery of a service.
34. For example, the US Annex proposal (op cit) sought Members' guarantees to impose access and use obligations on monopolies; the EU sought disciplines regarding services 'reserved' to monopolies.
35. An indicative list that organizes services into 11 broad sectors was prepared by the then GATT Secretariat as an aid in drafting schedules. See Services Sectoral Classification List, Note by the Secretariat (UR Doc No MTN.GNS/W/120, 10 July 1991). The sectors included in that list are: business services, communications (covering both telecommunications and audio-visual services), construction, distribution, education, environmental services, finance, health, tourism, recreational services, and transport (covering maritime, air, rail, road, etc).
36. For an overview of the sectoral coverage of services schedules, see The Results of the Uruguay Round of Multilateral Trade Negotiations GATT Secretariat, Geneva (November 1994) p 41.
37. Having borrowed a number of its key concepts and terms from the GATT, the Service Agreement does not necessarily start from scratch in terms of precedent-setting. In some instances, panels dealing with services-related disputes might be able to draw upon analogous precedents established over nearly 50 years of operation of the GATT and its experience with dispute settlement.
38. Address by Renato Ruggiero, Director General of the WTO, at the Strategies Sumit of Telecom95, 3 October 1995, Geneva.
39. The best example of being the 'D Series' of ITU recommendations, particularly D.1 and D.6.