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Japan International Value-Added Network Services Agreement (#2 Of 2) (1991)

[letterhead]

Deputy Minister for Policy Coordination

Ministry of Posts and Telecommunications

3--2 Kasumigaseki 1--chome

Chiyoda--ku Tokyo 100--90, JAPAN

June 25, 1991

Ambassador S. Linn Williams

Deputy United States Trade Representative

Executive Office of the President

Washington, D.C. 20506

The Honorable J. Michael Farren

Under Secretary for International Trade

U.S. Department of Commerce

Washington, D.C. 20230

Dear Ambassador Williams and Under Secretary Farren:

Consistent with the 1990 Policies and Procedures Regarding International Value--Added Network Services and with regard to the implementation of the investigation process described in Section III of the Attachment to my letter of April 27, 1991 to Ambassador Williams and Assistant Secretary McBride, I am pleased to inform you that the Ministry of Posts and Telecommunications (MPT) has decided to take the measures described in the Attachment to this letter.

I wish to confirm that our two parties will consult, at the request of either party, to discuss any questions or concerns regarding the measures specified in the Attachment to this letter. I wish to confirm that these measures will be in effect until they are revised based upon the results of such consultations.

I also wish to confirm that if the MPT determines that a type of evidence, other than that described in I(2) of the Attachment, would be sufficient, by itself, to trigger the investigation process described in the Attachment, then the MPT will consult with the USG about the possibility of adding such new evidence to the list described in I(2)of the Attachment.

Yours sincerely,

[signature]

Mitsuo Igarashi

Deputy Minister

for Policy Coordination

[letterhead]

DEPUTY UNITED STATES TRADE REPRESENTATIVE

EXECUTIVE OFFICE OF THE PRESIDENT

WASHINGTON, D.C. 20506

June 25, 1991

The Honorable Mitsuo Igarashi

Deputy Minister for Policy Coordination

Ministry of Posts and Telecommunications

3--3 Kasumigaseki l--Chome

Chiyoda--ku Tokyo 100

Dear Deputy Minister Igarashi:

Thank you for your letter of June 25, 1991 and its Attachment concerning measures that the Ministry of Posts and Telecommunication (MPT) has decided to take, consistent with the 1990 Policies and Procedures Regarding International Value-Added Network Services, and with regard to the Attachment to your letter to Ambassador Williams and to Assistant Secretary McBride of April 27, 1991.

We wish to confirm that our two parties will consult, at the request of either party, to discuss any questions or concerns regarding the measures specified in the Attachment to your letter. We also wish to confirm that these measures will be in effect until they are revised based upon the results of such consultations.

We also wish to confirm that if the MPT determines that a type of evidence other than that described in I(2) of the Attachment, would be sufficient, by itself, to trigger the investigation process described in the Attachment, then the MPT will consult with the USG about the possibility of adding such new evidence to the list described in I(2) of the Attachment.

Very truly yours,

[signature]

S. Linn Williams

[signature]

J. Michael Farren

ATTACHMENT

[attached to letter from Deputy Minister Igarashi]

I. Evidence

1. If a Type I carrier believes that a Japanese side customer, or its joint and/or intracorporate users in Japan, is engaging in simple resale between Japan and the United States, as referred to in the 1990 Policies and Procedures Regarding International Value_Added Network Services (1990 Policies and Procedures) and the April 27, 1991 letters between Deputy Minister Igarashi and Ambassador Williams and Assistant Secretary McBride, and as described in 7(a) or 7(b) below, such Type I carrier may file a complaint with the Ministry of Posts and Telecommunications (hereinafter XMPT").

2. A complaint must present "Evidence." "Evidence" is something which specifically shows simple resale between Japan and the United States, as described in 7(a) or 7(b) below, and must include at least one of the following:

a. a signed or sealed statement by a third party that an offer or offers of such simple resale has been made to them by a Japanese side customer or its Joint and/or intracorporate users in Japan;

b. an advertisement or advertisements offering such simple resale;

c. a brochure or a pamphlet explaining or presenting the offer of services or charges for services in a manner that clearly demonstrates such simple resale;

d. a contract or an application form for the contract that clearly shows such simple resale;

e. an invoice or receipt that clearly shows such simple resale.

3. In addition to the evidence in 2 (a)--2(e) above, other items, such as an article in a telecommunications trade journal, may suggest the possibility of the existence of simple resale between Japan and the United States, as described in 7(a)(b) below. A Type I carrier may use such articles to seek evidence as described in 2(a)--2(e) above. Such articles would, in combination with at least one of the types of evidence in 2(a)--2(e) above, constitute evidence sufficient to proceed as described below.

4. If a complaint does not contain the above required evidence, the MPT will not accept it.

5. If a complaint is filed containing the above required evidence, then the MPT will direct the Type I carrier to forward a copy of the written complaint to the customer for response to the MPT within 30 days. The MPT may direct the Type I carrier to notify the customer that customer responses not designated by the customer as confidential may be forwarded for comment to the Type I carrier. If any of the customer responses are designated confidential, then the customer should prepare a non-confidential summary of each confidential response that may be forwarded for comment by the MPT to the Type I carrier.

6. A customer is entitled to submit a request to dismiss the complaint for insufficiency. If such a request is made, the Type I carrier is allowed 15 days to respond.

7. The MPT will review the complaint and evidence (and, if submitted, the request to dismiss and response to that request) to see if it clearly shows:

a) the existence of a pattern of offers for payment of contracts for telecommunications services by a Japanese side customer to others (that is, to users of telecommunications services that do not belong to the Joint and/or intracorporate user group as defined in the 1990 Policies and Procedures and the April 27, 1991 letters between Deputy Minister Igarashi and Ambassador Williams and Assistant Secretary McBride), as if it were in lawful competition with a Type I carrier; or

b) that such a Japanese side customer is operating as a telecommunications business.

8. If the complaint and evidence do not clearly show simple resale between Japan and the United States, as described in 7(a)(b) above, or if the customer's response refutes the complaint and evidence, then the MPT will terminate the proceedings.

9. If the complaint and evidence clearly show simple resale between Japan and the United States, as described in 7(a)(b) above, and if the customer's response does not refute the complaint and evidence, then the MPT may proceed to the investigation. If the MPT decides to proceed to the investigation of the activities of a U.S. firm in Japan, as described below, the MPT will notify that decision to the Government of the United States of America (hereinafter the "USG").

II. Request for Information

l. If the complaint and evidence clearly show simple resale between Japan and the United States, as described in I(7)(a)(b) above, then the MPT may direct the Type I carrier to request that the Japanese side customer provide the following information regarding its activities. Except as provided in 6 below, information will only be requested regarding customer activities in Japan:

a. the names and addresses of joint and/or intracorporate users in Japan;

b. the method used to prevent such simple resale, consistent with the requirement in the l990 Policies and Procedures that there be technical capabilities to prevent simple resale:

c. the written answers to specific questions necessary for the MPT to determine whether or not there is such simple resale. Consistent with this, the MPT can, if necessary, ask specific questions of the Japanese side customer in Japan and its joint and/or intracorporate users in Japan concerning complaints made about its activities in Japan.

2. If requested by the Japanese side customer in Japan (i.e., the customer located in Japan that signs the contract with the Japanese Type I carrier), the MPT can also conduct a "connection test," if necessary. Additionally, in the case where the customer that signs the contract with the Japanese Type I carrier is located in the United States, such customer may also request the MPT to conduct such a "connection test," if necessary. No "connection test" between Japan and the United States will be conducted within the territory of the United States without the consent of the U.S. Federal Communications Commission (FCC), on a case--by--case basis.

3. Failing to respond to the request for information in a manner consistent with the procedures described herein may be dealt with to the customer's disadvantage in the MPT's final determination.

4. Information from the customer will go directly to the MPT. The Type I carrier will never see the responses, copies of responses, or any other information forwarded to the MPT from the customer, except as provided herein. The MPT will not discuss at any time with a Type I carrier any of the above responses or information, except as provided herein.

5. A customer may protest in writing any request for information it deems unnecessary for a determination. If the MPT disagrees in writing, and requests information notwithstanding the protest, then the customer is requested to submit the information but may do so noting its protest. Information submitted under protest must be so designated and the MPT must maintain a recordwith respect to such information.

6. No questions will be asked by the MPT, nor information requested or sought by the MPT, of customers outside of Japan except as described in III below. MPT may ask Japanese side customers in Japan questions concerning their activities. However, such a Japanese side customer in Japan is under no obligation to provide information concerning its activities outside of Japan.

III. FCC Cooperation

l. If the MPT has decided to investigate, on the basis of the complaint and evidence procedures provided in I above, then, if appropriate, and if the MPT believes it is necessary to inquire about the activities of a customer or its joint and/or intracorporate users in the United States, the MPT may send to the FCC a written request for its cooperation in determining whether there is simple resale between Japan and the United States, as described in I(7)(a)(b) above.

2. The FCC will provide information in response to specific questions from the MPT necessary for the MPT to determine whether there is simple resale between Japan and the United States, as described in I(7)(a)(b) above.

3. The FCC will provide such information within a reasonable period of time, normally within 60 days.

IV. MPT's Determination

The MPT will review the information and responses received pursuant to the above proceedings and requests for information (together with the results of the "connection test," if requested by the customer pursuant to II(2) above), to determine if these contain evidence that clearly proves simple resale between Japan and the United States, as described in I(7)(a)(b) above.

a. If these do not contain evidence sufficient to clearly prove the existence of such simple resale, then the MPT will terminate the proceedings. The MPT will also notify the Type I carrier that it cannot file a new complaint on the same set of facts.

b. If these do contain evidence sufficient to clearly prove the existence of such simple resale, then the MPT may request the Type I carrier to notify the customer that the MPT has determined that the customer is engaging in such simple resale. Unless the customer files an appeal within 15 days with the MPT, the MPT may inform the Type I carrier that it may take immediate action to suspend the service or terminate the contract in accordance with the tariff; alternatively, the MPT may request the Type I carrier to notify the customer that unless the customer files an appeal within 15 days with the MPT, the MPT may inform the Type I carrier that it may take action within a reasonable period of time to suspend the service or terminate the contract, in accordance with the provisions of the tariff, if the customer does not cease and desist from engaging in such simple resale.

V. Appeal

If an appeal is made within 15 days to the MPT, then the Type I carrier is not to discontinue the service. The MPT will review such an appeal to determine if the appeal casts a reasonable doubt on the existence of simple resale between Japan and the United States, as described in I(7)(a)or I(7)(b) above.

a. If the appeal does cast such a reasonable doubt, then the MPT will terminate the proceedings. The MPT will also notify the Type I carrier that it cannot file a complaint based on the same set of facts.

b. If the appeal does not cast such a reasonable doubt, then the MPT may request the Type I carrier to notify the customer that the MPT has turned down the customer's appeal and has informed the Type I carrier that it may take immediate action to suspend the service or terminate the contract in accordance with the tariff; alternatively, the MPT may inform the Type I carrier to notify the customer that it has informed the Type I carrier that it may take action within a reasonable period of time to suspend the service or terminate the contract, in accordance with the provisions of the tariff, if the customer does not cease and desist from engaging in such simple resale, by the end of that period.

VI. Publication of Investigation Procedures

The MPT will publish in the Kanpo a summary of the above described investigation procedures, after notifying Type I carriers concerning the establishment of the procedures.

VII. Other

1. Consistent with Japanese laws and regulations, the MPT will observe throughout the investigation process described herein strict requirements concerning the confidentiality of the information submitted to the MPT by a customer, as described below:

a. Submission of Confidential information

i. When a customer brings requested information to the MPT, the MPT at that time will identify any information or other items that the MPT believes already is generally available to the public.

ii. The MPT will immediately return to the customer the information and other items the MPT knows are generally available to the public, as described in a(i) above, and will not retain or copy such information or other items submitted by the customer.

iii. All information or other items retained by the MPT will be treated as confidential by the MPT andwill not be disclosed outside of the MPT, pursuant to relevant Japanese laws and regulations concerning confidentiality.

iv. In addition, the existence of any complaint, or possible complaint, or any materials relating to the same, will also be treated as confidential pursuant to the above. Once any business materials are designated as confidential, no persns (including Type I carriers), other than those who submitted the materials to the MPT and the officials of the MPT concerned, can have access to the confidential materials.

b. Confirmation of Information of Other Items or Statements

i. MPT, in order to confirm the accuracy of a particular statement submitted by the customer in response to MPT's request for information for the purpose of the investigation, will request the permission of the customer for the MPT to ask certain questions to third parties, regarding the particular information item or statement. No confidential information, as described in (a) above, will be disclosed under any circumstances.

ii. The customer will either grant such permission, or will provide an explanation as to why it cannot agree to a particular method of determining the accuracy of such particular information item or statement.

iii. If a customer refuses to grant such permission and refuses to submit an explanation for denying its permission, the MPT will not seek to confirm the accuracy of such item or statement. The MPT may weigh the customer's refusal negatively in its determination, and will so inform the customer. However, under no circumstances, fi a customer refuses to grant such permission, will the MPT divulge the contents of any information item or statement referred to in b(i) above to any party outside the MPT and the customer, including to the Type I carrier, nor will the MPT request the permission of the customer to do so.

c. Penalties

i. Violations of the above confidentiality provisions will be effectively dealth with in accordance with the relevant Japanese laws and regulations, incuding the provisions of the National Public Service Law relating to Government officials' obligatilns to maintain confidentiality.

2. The Type I carrier is required not to suspendor discontinue services covered by the April 27, 1991 letters between Deputy Minister Agarashi and Ambassador Williams and Assistant Secretary McBride and by this Attachment, on the basis of a complaint concerning simple resale between Japan and the United States, as described in I(7)(a)(b) above, until and unless there has been a determination by the MPT that the japanese side customer or its joint users and/or intracorporate users in Japan have engaged in such simple resale.

3. The Type I carrier is required not to request that customers provide them with a copy of any information requested.

4. A customer that is the subject of the complaint procedure described herein will be allowed a timely opportunity to see and comment on any complaints, or possible complaints, or on any other materials or information submitted in this connection to the MPT.

5. There will at no time be any monitoring of customer communications, or attempts to gather evidence beyond what is described herein, in connection with an investigation by the MPT of simple resale between japan and the United States as described in I(7)(a)(b) above.

6. Only a Type I carrier may file a complaint stating that a customer is engaged in simple resale between Japan and the United States as described in I(7)(a)(b) above. The only exception to this is that the MPT may, on its own motion, investigate, where there is clear evidence of such simple resale. In the event that the MPT takes action on its own motion, the same information may be requested, subject to the same limitations, as described above with respect to complaints by Type I carriers.

7. These procedures will take effect on July 1, 1991.


TANC offers these agreements electronically as a public service for general reference. Every effort has been made to ensure that the text presented is complete and accurate. However, copies needed for legal purposes should be obtained from official archives maintained by the appropriate agency.