Telecommunications Services in the Trans-Pacific Partnership: Will the Mobile Roaming Provisions Benefit Tourists and Traders?

By Kotlowitz, Danny; Voon, Tania | Melbourne Journal of International Law, December 2016 | Go to article overview

Telecommunications Services in the Trans-Pacific Partnership: Will the Mobile Roaming Provisions Benefit Tourists and Traders?


Kotlowitz, Danny, Voon, Tania, Melbourne Journal of International Law


The purported solution to international mobile roaming charges agreed by negotiators of the Trans-Pacific Partnership ('TPP') has been hailed as one of the key achievements of the telecommunications chapter, and the treaty more broadly, especially within Australia. Apparent market failure in respect of wholesale roaming rates has posed a challenge that Australia and New Zealand, as well as the European Union and other countries, have been grappling with for several years. The TPP solution is said to hold the key to substantial benefits for both individual travellers and businesses in TPP countries through the lowering of roaming rates. Yet a close examination of the detailed roaming provisions in the TPP raises a number of questions about their interpretation, implementation and broader significance. Technological and commercial developments may mean that roaming charges fall and alternatives to roaming become more pervasive and more effective, rendering the TPP provisions superfluous. The complexity of the provisions and ambiguities in their drafting will in any case make it difficult for them to be applied in a consistent way across TPP countries. While the TPP may deliver some improvements to transparency and cooperation, the substantive mechanisms for reciprocal lowering of roaming rates in the agreed treaty text may offer little reason to get excited. Moreover, the allowance for preferential treatment of particular TPP countries or their suppliers might not withstand a legal challenge in the context of a World Trade Organization dispute.

Contents

I    Introduction: Reason to Get Excited?
II   Commercial, Regulatory and Technological Context
       A Impact of Competition on Roaming Rates
       B Unilateral and Bilateral Regulation to Address Market Failure
       C Technological and Pricing Innovation and Alternatives to
         Roaming
III  The Dual Objectives of the TPP Roaming Provisions: Articles 13.6.1,
     13.6.7, 13.21
IV   Recognition of Unilateral Domestic Measures: Articles 13.6.2-13.6.3
       A Domestic Regulation to Enhance Transparency and Competition:
         Article 13.6.2
           1 Disclosure of Retail Rates: Article 13.6.2(a)
           2 Facilitating Technological Alternatives to Roaming: Article
             13.6.2(b)
           3 Other Possibilities: Disclosure of Wholesale Rates?
       B Domestic Regulation of Wholesale Rates in Case of Market
         Failure?
         Article 13.6.3
V    The Mechanism for Bilateral Wholesale Rate Regulation: Articles
     13.6.3-13.6.4
        A The Reciprocity Mechanism between TPP Parties: Article
          13.6.4(a)
        B Extending the Reciprocity Mechanism to Suppliers of TPP
          Parties: Article 13.6.4(b)
        C Commercial Negotiations as a Precondition: Final Sentence of
          Article 13.6.4
VI   Legal and Practical Effects of Bilateral Roaming Arrangements:
     Footnote 8; Article 13.6.5
        A Exemption from MFN and General Telecommunications
          Provisions: Article 13.6.5
        B A 'Domino Effect' of Bilateral Arrangements? Footnote 8

VII  Plurilateral Transparency: Article 13.6.6
        A The Obligation on TPP Parties to Gather and Report Information
        B Purpose and Potential Benefits
        C Difficulties and Potential Regulatory Costs
VIII Conclusion
IX   Annex: TPP Roaming Provisions

1 INTRODUCTION: REASON TO GET EXCITED?

According to Australia's Minister for Communications, one of the key benefits of the Trans-Pacific Partnership Agreement ('TPP') (1) is that it will address the transparency and cost of international mobile roaming ('IMR'), a prospect he describes as 'exciting)]'. (2) The ability of parties to enter into arrangements regarding wholesale roaming services between carriers in their respective countries, the Minister predicts, will 'deliver great benefits for both Australian businesses and consumers'. (3) Such proclamations follow from the apparent push by Australia to use the TPP to provide a 'solution' to IMR rates, through the use of bilateral arrangements as already contemplated with New Zealand. …

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