GATS

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GATS Telecom
Reasonable regulation
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Right to Regulate

• Members, ...
• Recognizing the right of Members to regulate,
  and to introduce new regulations, ... in order
  to meet national policy objectives and
• given asymmetries existing with respect to the
  degree of development of services regulations in
  different countries, the particular need of
  developing countries to exercise this right ...
• Agree as follows ...

GATS Preamble
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Reasonable Regulation
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What is reasonable?

• Transparent
• Non-discriminatory
• Objective
• Impartial
• Timely
• Least burdensome
• Necessary
• Least (trade) restrictive

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Non-discrimination
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Non-discrimination

• Most-favoured-nation Treatment
• MFN is critical - it makes WTO truly
  multilateral
• each Member shall accord immediately and
  unconditionally to services and service suppliers
  of any other Member treatment no less favourable
  than that it accords to like services and service
  suppliers of any other country

GATS Art. II1
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Non-discrimination

• MFN Treatment
• No discrimination among the foreign services or
  service suppliers of Members
• Moreover...MFN applies whether or not a
  commitments has made on telecom in its schedule !
  
• In telecom, MFN is particularly important in
  privatization, licensing or tendering

GATS Art. II
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Non-discrimination

• National Treatment
• Each Member shall accord to foreign services and
  services suppliers treatment no less favorable
  than that it accords to its own like services and
  service suppliers

GATS Art. XVII
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Non-discrimination

• National Treatment
• no discrimination against foreign services or
  service suppliers compared with domestic ones
• applies to any degree of discrimination in all
  types of measures
• no discrimination on a de jure or de facto basis
• In Schedules, limitations can allow preferences
  to domestic services or suppliers but, national
  treatment departures are not common in telecom
  commitments

GATS Art. XVII
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Non-discriminationIn telecom ...

• Access and use
• ensure that any service supplier ... is accorded
  access to and use of PTTNS on reasonable and
  non-discriminatory terms and conditions, for the
  supply of a service in its Schedule
• "non-discriminatory" is understood to refer to
  most-favoured-nation and national
  treatment ... as well as ...
  sector-specific usage ... "terms and conditions
  no less favourable than those accorded to any
  other user of like PTTNS under like
  circumstances"

Annex on Telecoms, Sec. 5(a)
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Non-discriminationIn telecom ...

• Interconnection with a major supplier will be
  ensured ...
• under non-discriminatory terms, conditions ...
  and rates
• and of a quality no less favourable than that
  provided for its own like services or for like
  services of non-affiliated service suppliers or
  for its subsidiaries or other affiliates...

Reference Paper, Para. 2.2(a)
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Non-discriminationIn telecom ...

• Universal service
• Such obligations will not be regarded as
  anti-competitive per se,
• provided they are administered in a transparent,
  non-discriminatory and competitively neutral
  manner and are not more burdensome than
  necessary...

Reference Paper, Para. 3
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Non-discriminationIn telecom ...

• Allocation use of scarce resources
• Procedures for the allocation and use of
  scarce resources, including frequencies, numbers
  and rights of way, will be carried out in an
  objective, timely, transparent and
  non-discriminatory manner.

Reference Paper Para. 6
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Reasonableness
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Reasonableness

• Core obligation
• Ensure that all measures of general application
  affecting trade in services are administered in
  a reasonable, objective and impartial manner

GATS Art. VI1
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ReasonablenessIn telecom

• Access and use
• ensure that any service supplier ... is accorded
  access to and use of PTTNS on reasonable and
  non-discriminatory terms and conditions, for the
  supply of a service included in its Schedule

Annex on Telecoms, Sec. 5(a)
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ReasonablenessIn telecom

• Ensure interconnection is provided ...
• ... in a timely fashion, on terms, conditions
  (including technical standards specifications)
  and cost-oriented rates that are transparent,
  reasonable, having regard to economic
  feasibility, ...

Reference paper, Para. 2.2(b)
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ReasonablenessIn telecom

• Interconnection Dispute Settlement
• A service supplier ... will have recourse,
  either
• at any time or
• after a reasonable period of time ...
• to an independent domestic body... to resolve
  disputes regarding appropriate terms, conditions
  and rates for interconnection within a reasonable
  period of time ...

Reference paper, Para. 2.5
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Define it?

• Ensure that all measures of general application
  affecting trade in services are administered in a
  reasonable, objective and impartial manner

GATS Art. VI1
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measures?

• "measure" means any measure by a Member,
• . . . a law, regulation, rule, procedure,
  decision, administrative action, or any other form

GATS Art. XXVIII(a)
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Define it?

• Ensure that all measures of general application
  affecting trade in services are administered in a
  reasonable, objective and impartial manner

GATS Art. VI1
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affecting trade in services?

• Includes measures related to
• purchase, payment or use of a service
• access to and use of, in connection with the
  supply of a service, services required to be
  offered to the public generally
• the presence, including commercial presence, of
  persons of a Member for the supply of a service
  in the territory of another Member

GATS Art. XXVIII(c)
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• supply of a service includes
• production
• distribution
• marketing
• sale
• delivery

GATS Art. XXVIII(b)
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Define it?

• Ensure that all measures of general application
  affecting trade in services are administered in
  a reasonable, objective and impartial manner

GATS Art. VI1
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administer?

• to manage or supervise the execution of
• carry out, govern, render

Merriam-Webster Online
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administer?

• The core obligation concerns
• the manner in which measures are administered or
  implemented...
• but not the nature or content of the measures
  themselves ... other obligations may apply in
  this respect

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Define it?

• Ensure that all measures of general application
  affecting trade in services are administered in
  a reasonable, objective and impartial manner

GATS Art. VI1
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Reasonable

• not extreme or excessive
• having a rational ground or motive
• logical, sensible, sound

Merriam-Webster Online
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Reasonable

• Precedent Panel Reports
• appropriate or suitable to the circumstances or
  purpose
• Flexibility and balance are also part of the
  notion of "reasonable"

Report of the Panel, Mexico Measures affecting
Telecommunications Services
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Reasonable

• Precedent Panel Reports
• The word 'reasonable' implies a degree of
  flexibility that involves consideration of all of
  the circumstances of a particular case. What is
  'reasonable' in one set of circumstances may
  prove to be less than 'reasonable' in different
  circumstances. ...
• In sum, a "reasonable period" must be
  interpreted consistently with the notions of
  flexibility and balance that are inherent in the
  concept of "reasonableness", and in a manner that
  allows for account to be taken of the particular
  circumstances of each case.

Appellate Body Report, US Hot-Rolled Steel
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Objective Impartial Timely
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Define it?

• Ensure that all measures of general application
  affecting trade in services are administered in
  a reasonable, objective and impartial manner

GATS Art. VI1
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Objective

• expressing or dealing with facts or conditions as
  perceived without distortion
• reducing subjective factors to a minimum
• fair, equitable, impartial, nondiscriminatory,
  unbiased,

Merriam-Webster Online
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Impartial

• treating or affecting all equally
• fair, equal, equitable, just
• nondiscriminatory, objective, unbiased

Merriam-Webster Online
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Objective impartial

• Administrative appeals
• maintain or institute procedures for the
  prompt review of, and where justified,
  appropriate remedies for, administrative
  decisions
• Where such procedures are not independent
  of the agency entrusted with the decision
  concerned ...ensure that the procedures in fact
  provide for an objective and impartial review

GATS Art. VI2(a)
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Impartiality in Telecom ...

• The decisions of and procedures used by
  regulators shall be impartial with respect to all
  market participants

Reference Paper, Para. 5
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Timely?

• Each Member shall publish promptly and, except in
  emergency situations, at the latest by the time
  of their entry into force, all relevant measures
  of general application... (Art III1)
• Where authorization is required ... within a
  reasonable period of time ... inform the
  applicant of the decision ... (Art VI3)
• At the request of the applicant, ... without
  undue delay, information concerning the status of
  the application. (Art VI3)

GATS Articles
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Timely?
Ensure interconnection is provided ... ... in a
timely fashion, on terms, conditions ... and
cost-oriented rates that are transparent,
reasonable ...
Reference Paper ---
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Timely?

• Interconnection Dispute Settlement
• A service supplier ... will have recourse,
  either
• at any time or
• after a reasonable period of time ...
• to an independent domestic body... to resolve
  disputes regarding appropriate terms, conditions
  and rates for interconnection within a reasonable
  period of time ...

Reference paper, Para. 2.5
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Domestic Regulation Work Program
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• A GATS Work Program
• is underway to ensure that
• Qualifications, technical standards, licensing
• do not constitute
• unnecessary barriers to trade

GATS Art. VI4
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Domestic RegulationPrinciples

• Three principles guiding the work program
• Such requirements should be ...
• based on objective transparent criteria
• not more burdensome than necessary
• and that licensing procedures, not in themselves
  a restriction on the supply of the service

GATS Art. VI4
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A standstill

• Qualifications - technical standards - licensing
• Pending results of the work program, Members
  cannot apply requirements that nullify or impair
  commitments in a manner which could not
  reasonably have been expected when commitments
  were made
• This means NEW requirements and related laws
  and regulations must comply with principles of
  the work program
• When was the last time you revised your telecom
  laws or regulations?

GATS Art. VI5
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The 3 principles

• Qualifications - technical standards licensing
• based on objective transparent criteria
  e.g. standards criteria relate to
  competence and ability to supply the service
• not more burdensome than necessary
  e.g. standards and criteria relate
  ensuring the quality of the service
• licensing procedures not a restriction on the
  supply of the service
  e.g. streamlined or simplified
  procedures

GATS Art. VI4
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In a nutshell ...

• Qualifications - technical standards licensing
• based on objective transparent criteria
  ... QUALITATIVE
• not more burdensome than necessary
  ... QUALITATIVE ... LEAST BURDENSOME
  ... PROPORTIONATE TO THE OBJECTIVE
• licensing procedures not a restriction on the
  supply of the service
  e.g. ... LEAST TRADE RESTRICTIVE

GATS Art. VI4
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Necessary
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Necessity?

• not constitute unnecessary barriers to trade
  (VI4)
• not more burdensome than necessary (VI4(b))
• necessary to protect public morals or to maintain
  public order ... to protect human, animal or
  plant life or health ... to secure compliance
  with laws or regulations (XIV)

GATS Articles
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Necessity?

• ...ensure that no condition is imposed on access
  to and use of public telecommunications transport
  networks and services other than as necessary
  ...

Annex on Telecoms, Sec. 5(e)
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Necessity?

• Universal service
• Such obligations will not be regarded as
  anti-competitive per se,
• provided they are administered in a transparent,
  non-discriminatory and competitively neutral
  manner and are not more burdensome than
  necessary...

Reference Paper Sec. 3
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Necessity test?

• ... may import absolute physical necessity or
  inevitability, or ... that which is only
  convenient, useful, appropriate, suitable,
  proper, or conducive to the end sought
• ...can refer to a range of degrees of
  necessity, depending on the context, and the
  object and purpose of the provision in which it
  is used
• ... can be understood to mean "indispensable"
  to achieving a policy goal or ... taken to
  mean simply "making a contribution to" a policy
  goal

Report of the Panel, Mexico Measures affecting
Telecommunications Services Appellate Body
Report, Korea Various Measures on Beef
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Necessity?

• legitimate policy objectives?
• proportionality?
• least trade restrictive measures available to
  achieve the desired policy objective?

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Necessity Reasonablenessin Telecom

• Policy objectives
• Ensure no condition is imposed on access use
  other than as necessary
• to safeguard public service responsibilities
• to protect technical integrity
• to ensure that services supplied are permitted
  pursuant to commitments
• Also relevant to licensing technical standards?
• Does this also help shed light on
  reasonableness?

Annex on Telecoms, Para 5(e)
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Who, how when
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Who?

• Independent regulator
• The regulatory body is separate from, and not
  accountable to, any supplier of basic
  telecommunications services

Reference Paper, para. 5
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How?

• Independence of the regulator
• Clear adequate authority powers?
• Selection appointment mechanisms?
• Funding mechanisms?
• Legal mechanisms?
• GATS leaves the decisions on these issues to
  individual governments

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How?

• To achieve reasonable regulation
• Maintain independence of regulatory authorities
  (legal and actual)
• Give regulator adequate enforcement authority
  powers
• Maintain clear goals objectives
• Always question the need for a regulation or
  requirement

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When?

• Always !