1
EXHIBIT 10.22
INDEX
SWBT/Digital Teleport, Inc. (Oklahoma) Tab 1
800 Tab 2
911 - Texas Tab 3
AIN Tab 4
BCR Tab 5
CH Tab 6
CNAM Tab 7
DCO Tab 8
DA Tab 9
FGA Tab 10
HOST Tab 11
ITR Tab 12
LIDB-AS Tab 13
LIDB-V Tab 14
OSS Tab 15
OS Tab 16
NIM/Physical Collocation Agreement Tab 17
SS7 Tab 18
RECORDING Tab 19
RESALE Tab 20
UNE Tab 21
WIRELESS Tab 22
WP Tab 23
TP Tab 24
PORT Tab 25
Poles, Ducts, Conduits & ROW Tab 26
2
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF
THE TELECOMMUNICATIONS ACT OF 1996
by and between
SOUTHWESTERN XXXX TELEPHONE COMPANY
and
DIGITAL TELEPORT, INC.
3
PAGE 1 OF 3
TABLE OF CONTENTS
1.0 DEFINITIONS.............................................................. 1
2.0 INTERPRETATION AND CONSTRUCTION.......................................... 5
3.0 IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES............. 5
4.0 INTERCONNECTION PURSUANT TO SECTION 25l(c)(2)........................... 6
4.1 Scope.............................................................. 6
4.2 Interconnection Coverage........................................... 6
4.3 Methods for Interconnection........................................ 7
4.4 Physical Architecture.............................................. 8
4.5 Technical Specifications........................................... 9
4.6 Interconnection in Additional Metropolitan Exchange Areas.......... 9
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT
TO SECTION 251(c)(2)..................................................... 10
5.1 Scope of Traffic.................................................... 10
5.2 Responsibilities of the Parties..................................... 10
5.3 Reciprocal Compensation for Termination of Local Traffic............ 11
5.4 Reciprocal Compensation for Transit Traffic......................... 12
5.5 Reciprocal Compensation for Termination of IntraLATA Interexchange
Traffic............................................................. 12
5.6 Compensation for Origination and Termination of Switched Access
Service Traffic to or From an IXC (Meet-Point Billing (MPB)
Arrangements)....................................................... 13
5.7 Billing Arrangements for Compensation for Termination of IntraLATA,
Local, and Transit Traffic.......................................... 14
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT
TO 251 (c)(2)............................................................ 15
6.1 Scope of Traffic.................................................... 15
6.2 Trunk Group Architecture Traffic Routing............................ 16
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC..................... 16
7.1 Information Services Traffic....................................... 16
7.2 Line Status Verification (LSV)/Busy Line Interrupt (BLI) Traffic... 16
7.3 Wireless Traffic................................................... 16
8.0 SIGNALING............................................................... 17
9.0 NUMBERING............................................................... 17
10.0 RESALE -- SECTIONS 251(b)(1); 251(c)(4); 252(d)(3); and
271(c)(2)(B)(xiv)...................................................... 19
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PAGE 2 OF 3
11.0 UNBUNDLED NETWORK ELEMENTS - SECTIONS 251(c)(3), 271(c)(2)(B)
(ii),(iv),(v),(vi),(x)................................................ 19
12.0 NOTICE OF CHANGES -- SECTION 251(c)(5)............................... 19
13.0 COLLOCATION -- SECTION 251 (c)(6).................................... 19
14.0 NUMBER PORTABILITY -- SECTIONS 251(b)(2) and 271 (c)(2)(B)(xi)....... 20
15.0 DIALING PARITY -- SECTION 251(b)(3); 271(c)(2)(B)(xii); and
271(e)(2)............................................................ 20
16.0 ACCESS TO RIGHTS-OF-WAY.-- SECTION 251(b)(4) and 271(c)(2)(B)(iii)... 20
17.0 DATABASE ACCESS -- SECTION 271 (c)(2)(B)(x).......................... 21
18.0 INTERCEPT REFERRAL ANNOUNCEMENTS..................................... 21
19.0 COORDINATED REPAIR CALLS............................................. 21
20.0 OTHER SERVICES 271 (c)(B)(2)(vii) and 271(c)(2)(B)(viii)............. 22
20.1 White Pages........................................................ 22
20.2 Calling Name Information........................................... 22
20.3 Billing/Collecting/Remitting....................................... 22
20.4 911 /E911 Service.................................................. 22
20.5 Directory Assistance (DA).......................................... 22
20.6 Operator Services.................................................. 22
20.7 Clearinghouse Services............................................. 22
20.8 Hosting............................................................ 22
20.9 Signaling System 7 Interconnection................................. 23
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES.............................. 23
22.0 EFFECTIVE DATE, TERM, AND TERMINATION................................ 24
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES......................... 25
24.0 CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION......... 25
25.0 SEVERABILITY........................................................ 26
26.0 INTELLECTUAL PROPERTY............................................... 26
27.0 INDEMNIFICATION..................................................... 26
28.0 LIMITATION OF LIABILITY............................................. 28
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PAGE 3 OF 3
29.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES.......................... 28
29.1 Certain Definitions............................................ 28
29.2 Specified Performance Breach................................... 29
29.3 Liquidated Damages............................................. 29
29.4 Limitations.................................................... 30
29.5 Sole Remedy.................................................... 30
29.6 Records........................................................ 30
30.0 REGULATORY APPROVAL.................................................. 30
31.0 MISCELLANEOUS........................................................ 31
31.1 Authorization.................................................. 31
31.2 Compliance and Certification................................... 31
31.3 Law Enforcement................................................ 31
31.4 Independent Contractor......................................... 32
31.5 Force Majeure.................................................. 32
31.6 Confidentiality................................................ 33
31.7 Governing Law.................................................. 34
31.8 Taxes.......................................................... 35
31.9 Non-Assignment................................................. 36
31.10 Non-Waiver..................................................... 36
31.11 Audits......................................................... 36
31.12 Disputed Amounts............................................... 37
31.13 Disputed Resolutions........................................... 37
31.14 Notices........................................................ 38
31.15 Publicity and Use of Trademarks or Service Marks............... 38
31.16 Section 252(i) Obligations..................................... 39
31.17 Joint Work Product............................................. 39
31.18 Intervening Law................................................ 39
31.19 No Third Party Beneficiaries; Disclaimer of Agency............. 40
31.20 No License..................................................... 40
31.21 Survival....................................................... 40
31.23 Scope of Agreement............................................. 40
31.24 Entire Agreement............................................... 40
6
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE TELECOMMUNICATIONS
ACT OF 1996
This Interconnection Agreement under Sections 251 and 252 of the
Telecommunications Act of 1996 ("Agreement"), is by and between Southwestern
Xxxx Telephone Company, a Missouri Corporation ("SWBT"), and Digital Teleport,
Inc. ("DTI").
WHEREAS, the Parties want to interconnect their networks at mutually
agreed upon points of interconnection to provide, directly or indirectly,
Telephone Exchange Services and Exchange Access to residential and business end
users predominantly over their respective telephone exchange service facilities
in Oklahoma; and
WHEREAS, the Parties are entering into this Agreement to set forth the
respective obligations of the Parties and the terms and conditions under which
the Parties will interconnect their networks and provide other services as
required by the Telecommunications Act of 1996 ("the Act") and additional
services as set forth herein; and
WHEREAS, for purposes of this Agreement, the Parties intend to operate
where SWBT is the incumbent local exchange carrier and DTI, a competitive local
exchange carrier, is certified by the Oklahoma Corporation Commission, as
required.
NOW, THEREFORE, DTI and SWBT hereby agree as follows:
1.0 DEFINITIONS
1.1 "Act" means the Communications Act of 1934 [47 U.S.C. 153(R)], as
amended by the Telecommunications Act of 1996.
1.2 "Affiliate" is as defined in the Act.
1.3 "Automatic Number Identification" or "ANI" is a switching system
feature that forwards the telephone number of the calling party and is used for
screening, routing and billing purposes.
1.4 "Busy Line Interrupt" or "BLI" is performed when one Party's operator
bureau interrupts a telephone number in progress after Line Status Verification
has occurred. The operator bureau will interrupt the busy line and inform the
called party that there is a call waiting.
1.5 "Calling Party Number" or "CPN" is a feature of signaling system 7
(SS7) protocol whereby the ten (10) digit number of the calling party is
forwarded from the end office.
1.6 "Central Office Switch" means a single switching system within the
public switched telecommunications network, including the following:
7
(i) "End Office Switches" which are Class 5 switches where end user
Exchange Services are directly connected and offered; and
(ii) "Tandem Office Switches" or "Tandems" which are Class 4 switches
used to connect and switch trunk circuits between Central Office Switches.
Central Office Switches may be employed as combination End Office/Tandem Office
switches (combination Class 5/Class 4).
1.7 "CLASS Features" mean certain CCS-based features available to end
users including, but not limited to: Automatic Call Back; Call Trace; Caller
Identification and related blocking features; Distinctive Ringing/Call Waiting;
Selective Call Forward; and Selective Call Rejection.
1.8 "Collocation" means an arrangement whereby one Party's (the
"Collocating Party") facilities are terminated in its equipment necessary for
Interconnection or for access to Network Elements on an unbundled basis which
has been installed and maintained at the premises of a second Party (the
"Housing Party"). Collocation may be "physical" or "virtual." In "Physical
Collocation," the Collocating Party installs and maintains its own equipment in
the Housing Party's premises. In "Virtual Collocation," the Housing Party
installs and maintains the collocated equipment in the Housing Party's
premises. Collocation includes, but is not limited to, collocation of 38 GHz
basic transmission equipment, provided it complies with the guidelines in
SWBT's current Physical Collocation 02/14/97 Technical Publication provided to
DTI.
1.9 "Commission" means the Oklahoma Corporation Commission.
1.10 "Common Channel Signaling" or "CCS" is a special network, fully
separate from the transmission path of the public switched network, that
digitally transmits call set-up and network control data. Unless otherwise
agreed by the Parties, the CCS used by the Parties shall be SS7.
1.11 "Cross Connect" means the unbundled network element cross connect
rate element which is used to designate connection between: i) the SWBT
distribution frame and an unbundled network element component, or ii) two
unbundled network element components, or iii) the SWBT distribution frame and
the tie cable termination point for DTI collocation.
1.12 "Dialing Parity" is as defined in the Act. As used in this Agreement,
Dialing Parity refers to both Local Dialing Parity and Toll Dialing Parity.
1.13 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
8
1.14 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal
in the time-division multiplex hierarchy.
1.15 "Digital Signal Level 1" or "DS1" means the 1.544 Mbps first-level
signal in the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS1 is the initial level of
multiplexing.
1.16 "Digital Signal Level 3" or "DS3" means the 44.736 Mbps third-level in
the time-division multiplex hierarchy. In the time-division multiplexing
hierarchy of the telephone network, DS3 is defined as the third level of
multiplexing.
1.17 "End User" means a third-party residence or business, that subscribes
to Telecommunications Services provided by either of the Parties, or by another
telecommunications service provider.
1.18 "Exchange Access" is as defined in the Act.
1.19 "Exchange Message Record" or "EMR" means the standard used for
exchange of Telecommunications message information among Telecommunications
Carriers for billable, non-billable, sample, settlement and study data. EMR
format is contained in Bellcore Practice BR-010-200-010 XXXX Exchange Message
Record.
1.20 "Fiber-Meet" means an Interconnection architecture method whereby the
Parties physically interconnect their networks via an optical fiber interface
(as opposed to an electrical interface) at a mutually agreed upon location.
1.21 "Interconnection" is as Described in the Act and refers to the
connection of separate pieces of equipment, facilities, or platforms between or
within networks for the purpose of transmission and routing of Telephone
Exchange Service traffic and Exchange Access traffic.
1.22 "Interconnection Activation Date" is the date that the construction
of the joint facility Interconnection arrangement has been completed, trunk
groups have been established, and joint trunk testing is completed.
1.23 "Interexchange Carrier" or "IXC" means a carrier that provides,
directly or indirectly, interLATA or intraLATA Telephone Toll Services. For
purposes of Section 6.0 of this Agreement, the term "IXC" includes any entity
which purchases FGB or FGD Switched Exchange Access Service in order to
originate or terminate traffic to/from DTI's end users.
1.24 "IntraLATA Toll Traffic" means those intraLATA station calls that are
not defined as Local Traffic in this Agreement.
9
1.25 "Line Status Verification" or "LSV" or "Busy Line Verify" or "BLV" is
performed when one Party's end user requests assistance from the operator
bureau to determine if the called line of the other Party is in use.
1.26 "Local Traffic," for purposes of intercompany compensation, is if (i)
the call originates and terminates in the same SWBT exchange area; or (ii)
originates and terminates within different SWBT Exchanges that share a common
mandatory local calling area, e.g., mandatory Extended Area Service (EAS),
mandatory Extended Local Calling Service (ELCS), or other like types of
mandatory expanded local calling scopes.
1.27 "Losses" means any and all losses, costs (including court costs),
claims, damages (including fines, penalties, and criminal or civil judgments
and settlements), injuries, liabilities and expenses (including attorneys'
fees).
1.28 "MECAB" refers to the Multiple Exchange Carrier Access Billing
(MECAB) document prepared by the Billing Committee of the Ordering and Billing
Forum (OBF), which functions under the auspices of the Carrier Liaison
Committee (CLC) of the Alliance for Telecommunications Industry Solutions
(ATIS). The MECAB document, published by Bellcore as Special Report
SR-BDS-000983, contains the recommended guidelines for the billing of access
services provided to an IXC by two or more LECs, or by one LEC in two or more
states within a single LATA. The latest release is issue No. 5, dated June
1994.
1.29 "MECOD" refers to the Multiple Exchange Carriers Ordering and Design
(MECOD) Guidelines for Access Services - Industry Support Interface, a document
developed by the Ordering/Provisioning Committee of the Ordering and Billing
Forum (OBF), which functions under the auspices of the Carrier Liaison
Committee (CLC) of the Alliance for Telecommunications Industry" Solutions
(ATIS). The MECOD document, published by Bellcore as Special Report SR
STS-002643, establishes methods for processing orders for access service which
is to be provided to an IXC by two or more telecommunications providers. The
latest release is issue No. 3, dated February 1996.
1.30 "Meet-Point Billing" or "MPB" refers to a billing arrangement whereby
two or more Telecommunications Carriers jointly provide for switched access
service to an IXC, with each LEC receiving an appropriate share of its switched
access revenues as defined by its effective access tariffs.
1.31 "Metropolitan Exchange Area" means a geographical area defined in
SWBT current tariffs effective as a metropolitan exchange local calling area.
For example, Dallas, Ft. Worth, Houston, Little Rock, Oklahoma City, St. Louis,
Austin and would be examples of Metropolitan Exchange Areas.
1.32 "Network Element Bona Fide Request" means the process described [in
Appendix BFR that is attached hereto and incorporated herein] that prescribes
the terms and conditions relating to a Party's request that the other Party
provide a Network Element.
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1.33 "Switched Exchange Access Service" means the offering of transmission
or switching services to Telecommunications Carriers for the purpose of the
origination or termination of Telephone Toll Service. Switched Exchange Access
Services include, but are not necessarily limited to: Feature Group A, Feature
Group B, Feature Group D, 800/888 access, and 900 access and their successors
or similar Switched Exchange Access services.
1.34 "Telephone Exchange Services"
1.35 "Synchronous Optical Network" or "SONET" means an optical interface
standard that allows inter-networking of transmission products from multiple
vendors. The base rate is 51.84 Mbps (OC-1/STS-1) and higher rates are direct
multiples of the base rate, up to 13.22 Gpbs.
1.36 "Telephone Exchange Service" is as defined in the Act.
1.37 "Wire Center" means an occupied structure or portion thereof in which
a Party has the exclusive right of occupancy and which serves as a Routing
Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION
In the event of any amendment of the Act or any legislative, regulatory,
judicial order, rule or regulations, or other legal action that revises or
reverses the Act, the FCC's Orders in FCC Docket Nos. 96-98 and 95-185 or any
applicable order or arbitration award purporting to apply the provisions of the
federal Act, the Parties reserve all of their rights and remedies, including
those to amend, alter, or revise this Agreement.
3.0 IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES
Subject to the terms and conditions of this Agreement, Interconnection of
the Parties' facilities and equipment pursuant to Sections 4.0, 5.0 and 6.0 for
the transmission and routing of Telephone Exchange Service traffic and Exchange
Access traffic shall be established on or before the corresponding
"Interconnection Activation Date" shown for each such Metropolitan Exchange
Area on Appendix DCO attached hereto and incorporated by reference. Appendix
DCO may be revised and supplemented from time to time upon the mutual agreement
of the Parties to reflect the Interconnection of additional Metropolitan
Exchange Areas pursuant to Section 4.6 by modifying or updating Appendix DCO.
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4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)
4.1 SCOPE
This Section 4.0 describes the physical architecture for Interconnection
of the Parties' facilities and equipment for the transmission and routing of
Telephone Exchange Service traffic and Exchange Access traffic pursuant to
Section 251(c)(2) of the Act. Such Interconnections shall be equal in quality
to that provided by the Parties to themselves or to any subsidiary, affiliate
or Third Party. Appendix ITR attached hereto and incorporated by reference
prescribes the specific trunk groups (and traffic routing parameters) which
will be configured over the physical connections described in this Section 4.0
to provide the facilities for the transmission and routing of Telephone
Exchange Service traffic (as described in Section 5.0), Exchange Access traffic
(as described in Section 6.0), LSV/BLI traffic (as described in sub-section
7.2).
4.2 INTERCONNECTION COVERAGE
The Parties shall provide for interoperation of their networks and shall
interconnect their facilities as stated below:
4.2.1. DTI shall interconnect with SWBT's facilities as follows:
a. In each SWBT exchange area in which DTI chooses to offer local exchange
service, DTI, at a minimum, will interconnect its network facilities to: (a)
each SWBT access tandem(s), and (b) to either each SWBT local tandem(s) or each
SWBT end office(s) ("EO") subtending that local tandem(s). SWBT EOs and tandems
through which DTI will terminate its traffic will be called SWBT Interconnection
Wire Centers and are identified in Appendix DCO. As DTI initiates Exchange
Service operations in additional SWBT exchange areas, SWBT and DTI shall agree
upon additional SWBT Interconnection Wire Centers in each new exchange area. DTI
agrees that if SWBT establishes additional tandems in an exchange area within
which DTI offers local exchange service, DTI will interconnect to the additional
tandems.
b. Interconnection to a SWBT local tandem(s) will provide DTI local access
to the SWBT end offices and NXXs which subtend that tandem(s), and to other
Local Exchange Carriers ("LECs") (subject to sub-section 5.4) which are
connected to that tandem(s). Interconnection to SWBT EO(s) will provide DTI
access only to the NXXs served by that individual EO(s) to which DTI
interconnects.
c. Interconnection to a SWBT access tandem will provide DTI interexchange
access to SWBT, IXCs, LECs and CRMS providers (subject to sub-section 7.3)
which are connected to that tandem. Where an access tandem also provides local
tandem functions, interconnection to a SWBT access tandem
12
serving that exchange will also provide DTI access to SWBT's EOs with the same
functionality described in (b) above.
d. Where DTI requires ancillary services (e.g., Directory Assistance,
Operator Assistance, E911/911) additional interconnection to SWBT's
Interconnection Wire Center(s) or special trunking will be required for
interconnection to such ancillary services.
4.2.2. SWBT shall interconnect with DTI's facilities under terms and
conditions no less favorable than those identified in sub-section 4.2.1, above.
4.3 METHODS FOR INTERCONNECTION
Where the Parties interconnect, for the purpose of exchanging traffic
between networks, the Parties may use the following interconnection methods of
each Tandem and End Office identified in Appendix DCO making use of facilities
they own or lease from a third party.
4.3.1 Physical Collocation Interconnection ("PCI") - Where DTI provides
fiber cable and connects to its equipment located in the SWBT Wire Center. DTI
owns and maintains DTI's equipment.
4.3.2 Virtual Collocation Interconnection ("VCI") - Where DTI provides
fiber cable to SWBT for connection to DTI-designated basic transmission
equipment dedicated solely for DTI's use, located in the SWBT Interconnection
Wire Center. SWBT owns and maintains the basic transmission equipment at the
SWBT Interconnection Wire Center. This option shall be consistent with the
terms of SWBT's virtual collocation tariff.
4.3.3 SONET-Based Interconnection ("SBI") - Where DTI provides fiber cable
to SWBT for connection to SWBT-designated basic transmission equipment located
at the SWBT Interconnection Wire Center and dedicated solely for DTI's use.
SWBT owns and maintains the basic transmission equipment. This option shall be
consistent with SWBT's SBI tariff.
4.3.4 Leased Facility Interconnection ("LFI") - Where network facilities
exist, either Party may lease facilities from the other Party at rates no
greater than SWBT Access Tariff rates.
4.3.5 Mid-span Fiber Interconnection ("MSFI") - Where the Parties agree to
interconnect through SONET technology, using a Fujitsu originating line
terminating multiplexer fiber optic terminal ("FOT") details of this
architecture are addressed in Appendix MSFI attached hereto and incorporated by
reference. This interconnection arrangement is limited to interconnecting
trunks.
13
4.3.6 The Parties may agree to utilize another Interconnection Method as
may be determined to be technically feasible in the future.
4.4 PHYSICAL ARCHITECTURE. Using one or more of the Interconnection
Methods described in Section 4.3 above, the Parties will agree on a physical
architecture plan. This plan will be documented within Appendix DCO. The
Parties agree to deploy one physical architecture plan per Metropolitan Serving
Area. The two architecture arrangements, End Point Meet and Mid-Point Meet,
are discussed below. Additional physical architectures, as yet undefined, may
evolve during the term of this Agreement. These future as yet undefined
architectures can be deployed if mutually agreed upon.
4.4.1 End Point Meet. Using the "End Point Meet" architecture, the Parties
will establish transport facilities from their own Central Office(s) to the
other party's Central Office(s) utilizing any method of interconnection
described in Section 4.3 above. Unless otherwise mutually agreed upon, each
Party will use its own transport facilities to provide its trunking as set
forth in Appendix ITR. Each Party will be responsible for the appropriate
sizing, operation, and maintenance of its own transport facilities. If
initially deployed as an End Point Architecture, the deployment architecture
may be migrated or groomed, upon mutual agreement, to a Mid-Point Meet
architecture.
4.4.2 Mid-Point Meet. Using the Mid-Point Meet architecture, the Parties
will agree upon a Network Interconnection Point (NIP). The NIP functions as a
demarcation point for each Party. Each Party is responsible to transport all
trunking to its side of the NIP utilizing any method of interconnection
described in Section 4.3 above. Each Party is responsible for the appropriate
sizing, operation, and maintenance of the transport facility and trunking to
the NIP.
4.4.2.1 A second NIP can be established to eliminate a "single point of
failure" when mutually agreed upon. The establishment of the second NIP should
not require additional or increased trunking or facilities of either Party.
Trunking from the initial NIP will be groomed or augmented to the second NIP
upon mutual agreement.
4.4.2.2 When required, based on guidelines established pursuant to
Appendix ITR, either Party may trunk directly to the other Party's EO. If the
Party is virtually or physically collocated to the EO, then that collocation
will be designated a NIP. This collocation will be used for the transport of
direct EO trunking, in addition to other uses. The collocated Party is
responsible for the appropriate sizing, operation, and maintenance of the
transport facility. In the instance where the Party is not collocated, the EO
trunk group will be handed off at the original NIP and both Parties will be
responsible for the transport facility on their side of that NIP.
4.4.2.3 Unless otherwise mutually agreed upon, when Mid-Point Meet
architecture has been deployed, it will remain as the architecture of choice
during the term of this Agreement.
14
4.5 TECHNICAL SPECIFICATIONS
4.5.1 DTI and SWBT shall work cooperatively to install and maintain a
reliable network. DTI and SWBT shall exchange appropriate information (e.g.,
maintenance contact numbers, network information, information required to
comply with law enforcement and other security agencies of the Government and
such other information as the Parties shall mutually agree) to achieve this
desired reliability.
4.5.2 DTI and SWBT shall work cooperatively to apply sound network
management principles by invoking network management controls to alleviate or
to prevent congestion.
4.5.3 Technical Publications that describes the practices, procedures,
specifications and interfaces generally utilized by SWBT, are listed in
Appendix TP attached hereto and incorporated by reference. Appendix TP will
herein assist the Parties in meeting their respective Interconnection
responsibilities. Copies of the publications listed in Appendix TP have been or
shall be provided to DTI by SWBT.
4.6 INTERCONNECTION IN ADDITIONAL METROPOLITAN EXCHANGE AREAS
4.6.1 If DTI decides to offer Telephone Exchange Services in any other
Metropolitan Exchange and Areas in which SWBT also offers Telephone Exchange
Services, DTI shall provide written notice to SWBT of the need to establish
Interconnection in such Metropolitan Exchange Areas pursuant to this Agreement.
4.6.2 The notice provided in Section 4.6.1 shall include: (i) the initial
Routing Point DTI has designated in the Metropolitan Exchange Area; (ii) DTI's
requested Interconnection Activation Date; and (iii) a non-binding forecast of
DTI's trunking requirements.
4.6.3 Unless otherwise agreed by the Parties, the Parties shall designate
the Wire Center that DTI has identified as its initial Routing Point in the
Metropolitan Exchange Area as DTI Interconnection Wire Center ("IWC") in that
Metropolitan Exchange Area and shall designate the SWBT Tandem Office Wire
Center within the Metropolitan Exchange Area nearest to the IWC (as measured in
airline miles utilizing the V&H coordinates method) as the SWBT Interconnection
Wire Center (SIWC) in that Metropolitan Exchange Area.
4.6.4 Unless otherwise agreed by the Parties, the Interconnection
Activation Date in each new Metropolitan Exchange Area shall be the one-hundred
and fiftieth (150th) day following the date on which DTI delivered notice to
SWBT of the need to establish Interconnection pursuant to Section 4.6.1 above.
Within ten (10) business days of SWBT's receipt of DTI's notice, SWBT and DTI
shall confirm their respective Wire Centers to be Interconnected and the
Interconnection Activation Date for the new Metropolitan Exchange Area by
attaching a supplementary schedule to Appendix DCO.
15
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC
PURSUANT TO SECTION 251(c)(2)
5.1 SCOPE OF TRAFFIC
This Section 5.0 prescribes parameters for Traffic Exchange trunk groups
the Parties shall establish over the Interconnections specified in Section 4.0.
The Parties shall employ the Traffic Exchange trunk groups specified in this
Section 5.0 and in Appendix ITR. The Parties shall employ for the transmission
and routing of all Local and IntraLATA Toll Traffic between the Parties'
respective Telephone Exchange Service end users.
5.1.1 For purposes of compensation under this Agreement, the
telecommunications traffic traded between DTI and SWBT will be classified as
either Local Traffic, Transit Traffic, IntraLATA Interexchange Traffic,
InterLATA Interexchange Traffic, or FGA Traffic. The compensation arrangement
for the joint provision of Feature Group A (FGA) Services is covered in
Appendix FGA, attached hereto and incorporated herein by reference. The
Parties agree that, notwithstanding the classification of traffic under this
Agreement, either Party is free to define its own "local" calling area(s) for
purposes of its provision of Telecommunications Services to its end users.
5.1.2 Calls originated by one Party's end user and terminated to the other
Party's end user will be classified as "Local Traffic" under this Agreement if
the call: (i) originates and terminates in the same SWBT exchange area; or (ii)
originates and terminates within different SWBT Exchanges that share a common
mandatory local calling area, e.g., mandatory Extended Area Service (EAS),
mandatory Extended Local Calling Service (ELCS), or other like types of
mandatory expanded local calling scopes.
5.2 RESPONSIBILITIES OF THE PARTIES
5.2.1 Each Party to this Agreement will be responsible for the accuracy
and quality of its data as submitted to the respective Parties involved.
5.2.2 Each Party will include in the information transmitted to the other
for each call being terminated on the other's network (where available), the
originating Calling Party Number (CPN).
5.2.3 If the percentage of calls passed with CPN is greater than ninety
percent (90%), all calls exchanged without CPN information will be billed as
either Local Traffic or IntraLATA Toll Traffic in direct proportion to the
minutes of use (MOU) of calls exchanged with CPN information. If the
percentage of calls passed with CPN is less than ninety percent (90%), all
calls passed without CPN will be billed as switched access.
5.2.4 The type of originating calling number transmitted depends on the
protocol of the trunk signaling used for interconnection. Traditional toll
protocol will be used
16
with Multi-Frequency (MF) signaling, and ANI will be sent from the originating
Party's end office switch to the terminating Party's tandem or end office
switch.
5.2.5 Where one Party is passing CPN but the other party is not properly
receiving information, the Parties will cooperate to rate the traffic
correctly.
5.3 RECIPROCAL COMPENSATION FOR TERMINATION OF LOCAL TRAFFIC
5.3.1 The Compensation set forth below will apply to all Local Traffic as
defined in sub-section 5.1.2 of this Agreement.
5.3.2 Applicability of Rates
i) The rates, terms, conditions in this Section 5.3 apply only to the
termination of Local Traffic, except as explicitly noted.
ii) The Parties agree to compensate each other for the termination of Local
Traffic on a minute of use (MOU) basis.
5.3.3 Rate Elements
5.3.3.1 A Tandem Served rate element is applicable to Tandem Routed Local
Traffic on a terminating local MOU basis and includes compensation for the
following sub-elements:
i) Tandem Switching - compensation for the use of tandem switching
functions.
ii) Tandem Transport - compensation for the transmission facilities between
the local tandem and the end offices subtending that tandem.
iii) End Office Switching - compensation for the local EO office switching
and line termination functions necessary to complete the transmission.
5.3.3.2 An End Office Served rate element applies to direct-routed
Local Traffic on a terminating local MOU basis and includes compensation for
End Office Switching. This includes direct-routed Local Traffic that
terminates to offices that have combined tandem and End Office functions.
17
5.3.4 Local Traffic Interconnection Rates
Serving Method Prices Per MOU
Tandem Served $.00975
End Office Served $.00720
5.4 RECIPROCAL COMPENSATION FOR TRANSIT TRAFFIC
5.4.1 Transit Traffic allows one Party to send traffic to a third party
network through the other Party's tandem. A Transit Traffic rate element
applies to all MOUs between a Party and third party networks that transit the
other Party's tandem switch. The originating Party is responsible for the
appropriate rates unless otherwise specified. The Transit Traffic rate element
is only applicable when calls do not originate with (or terminate to) the
transit Party's end user. The Local Transit Traffic rate element applies when
both the originating and terminating end users are within SWBT local and
mandatory exchanges.
Type of Transit Traffic Prices Per MOU
Local Transit $0.003
5.4.2 All other traffic which transits a tandem shall be treated as
Meet-Point Billing Traffic as described in Section 5.6 below or as intraLATA
interexchange traffic as described in Section 5.5.3 below, unless otherwise
agreed.
5.4.3 Each Party represents that it shall not send Local Traffic to the
other Party that is destined for the network of a third party unless and until
such Party has the authority to exchange traffic with the third party.
5.5 RECIPROCAL COMPENSATION FOR TERMINATION OF INTRALATA INTEREXCHANGE TRAFFIC
5.5.1 For intrastate intraLATA interexchange service traffic, compensation
for termination of intercompany traffic will be at terminating access rates for
Message Telephone Service (MTS) and originating access rates for 800 Service,
including the Carrier Common Line (CCL) charge, as set forth in each party's
Intrastate Access Service Tariff or as otherwise mutually agreed. For interstate
intraLATA intercompany service traffic, compensation for termination of
intercompany traffic will be at terminating access rates for MTS and originating
18
access rates for 800 Service including the CCL charge, as set forth in each
party's interstate Access Service Tariff or as otherwise mutually agreed.
5.6 COMPENSATION FOR ORIGINATION AND TERMINATION OF SWITCHED ACCESS SERVICE
TRAFFIC TO OR FROM AN IXC (MEET-POINT BILLING (MPB) ARRANGEMENTS)
5.6.1 For interstate, interLATA traffic, terminating compensation will be
at access rates as set forth in each Party's own applicable access tariffs.
5.6.2 The Parties will establish MPB arrangements in order to provide
Switched Access Services to IXCs via SWBT's access tandem switch in accordance
with the MPB guidelines adopted by and contained in the Ordering and Billing
Forum's MECOD and MECAB documents. DTI's Meet Points with SWBT shall be those
identified in Appendix DCO and any supplements thereto.
5.6.3 Billing to IXCs for the Switched Exchange Access Services jointly
provided by the Parties via Meet-Point Billing arrangement shall be according
to the multiple xxxx/multiple tariff method. As described in the MECAB
document, each Party will render a xxxx in accordance with its own tariff for
that portion of the service it provides. For the purpose of this Agreement,
DTI is the Initial Billing Company (IBC) and SWBT is the Subsequent Billing
Company (SBC). The assignment of revenues, by rate element, and the Meet-Point
Billing percentages applicable to this Agreement are set forth in Appendix DCO.
The actual rate values for each element shall be the rates contained in that
Party's own applicable access rates.
5.6.4 The Parties, as applicable, will maintain provisions in their
respective federal and state access tariffs, or provisions within the National
Exchange Carrier Association (NECA) Tariff No. 4, or any successor tariff,
sufficient to reflect this MPB arrangement, including MPB percentages.
5.6.5 As detailed in the MECAB document, the Parties will, in accordance
with accepted time intervals, exchange all information necessary to accurately,
reliably and promptly xxxx third Parties for Switched Access Services traffic
jointly handled by the Parties via the Meet Point Arrangement. Each Party
reserves the right to charge the other Party for the recording/processing
functions it performs pursuant to the terms and conditions of Appendix
Recording attached hereto and incorporated by reference. Information shall be
exchanged in Exchange Message Record (EMR) format, on magnetic tape or via a
mutually acceptable electronic file transfer protocol.
5.6.6 Initially, billing to IXCs for the Switched Access Services jointly
provided by the parties via the MPB arrangement will be according to the
multiple xxxx/multiple tariff method, as described in the MECAB document. Each
Party will render a xxxx to the IXC in accordance with its own rate structure
for that portion of the service it provides. Each Party will xxxx its own
network access service rates to the IXC. The residual interconnection charge
(RIC), if any, will be billed by the Party providing the End Office function.
19
5.6.7 Meet-Point Billing shall also apply to all jointly provided MOU
traffic bearing the 900, 800, and 888 NPAs or any other non-geographic NPAs
which may likewise be designated for such traffic in the future where the
responsible party is an IXC. When SWBT performs 800 database queries, SWBT will
charge the provider of the Signaling Service Point for the database query in
accordance with standard industry practices.
5.6.8 Each Party shall coordinate and exchange the billing account
reference ("BAR") and billing account cross reference ("BACR") numbers for the
Meet Point Billing service. Each Party shall notify the other if the level of
billing or other BAR/BACR elements change, resulting in a new BAR/BACR number.
5.6.9 Each Party will provide the other with the Exchange Access detailed
usage data within thirty (30) days of the end of the billing period. SWBT will
perform assembly and editing, messages processing and provision of Access Usage
Records in accordance with Appendix Recording, attached hereto and incorporated
by reference. Each Party will provide to the other the Exchange Access summary
usage data within ten (10) working days after the date that a xxxx is rendered
to the IXC by the initial Party. To the extent DTI provides SWBT with Access
Usage Records, SWBT will compensate DTI on the same terms as DTI compensates
SWBT per Appendix Recording. SWBT acknowledges that currently there is no
charge for Summary Usage Data Records but that such a charge may be
appropriate. At DTI's request, SWBT will negotiate a mutual and reciprocal
charge for provision of Summary Usage Data Records.
5.6.10 Errors may be discovered by DTI, the IXC or SWBT. Both SWBT and DTI
agree to provide the other Party with notification of any discovered errors
within two (2) business days of the discovery.
5.6.11 In the event of a loss of data, both Parties shall cooperate to
reconstruct the lost data within sixty (60) days of notification and if such
reconstruction is not possible, shall accept a reasonable estimate of the lost
data, based upon no more than three (3) to twelve (12) months of prior usage
data, if available.
5.7 BILLING ARRANGEMENTS FOR COMPENSATION FOR TERMINATION OF INTRALATA, LOCAL,
AND TRANSIT TRAFFIC
5.7.1 Other than for traffic described in sub-section 5.6 above, each
Party shall deliver monthly settlement statements for terminating the other
Party's traffic based on the following:
5.7.1.1 Each Party shall, unless otherwise agreed, adhere to the
detailed technical descriptions and requirements for the recording, record
exchange, and billing of traffic using the guidelines as set forth in the
Technical Exhibit Settlement Procedures (TESP),
20
previously provided by SWBT to DTI. Reference to this technical publication is
included in Appendix TP.
(a) Where DTI has direct/high usage trunks to a SWBT end office
with overflow trunking through a SWBT tandem, billing for the Tandem Traffic
will be calculated as follows:
Total Originating MOUs Recorded By DTI Less Direct End Office Terminating
MOUs Recorded By SWBT Equals Total MOUs To Be Compensated As Tandem Traffic
(b) Where DTI has direct/high usage trunks to a third party with overflow
trunking through a SWBT tandem, DTI must differentiate the originating MOU
records for the Parties to ascertain how many MOUs should be compensated as
Transit Traffic. If DTI is unable to so differentiate the originating MOU
records, the Parties shall mutually agree upon a surrogate method for
calculating Transit Traffic charges owed to SWBT.
5.7.1.2 On a monthly basis, each Party will record its originating MOU
including identification of the originating and terminating NXX for all
intercompany calls.
5.7.1.3 Each Party will transmit the summarized originating MOU from
Section 5.7.1.1 above to the transiting and/or terminating Party for subsequent
monthly intercompany settlement billing.
5.7.1.4 Bills rendered by either Party will be paid within thirty (30)
days of receipt subject to subsequent audit verification.
5.7.1.5 MOUs for the rates contained herein will be measured in seconds by
call type, and accumulated each billing period into one (1) minute increments
for billing purposes in accordance with industry rounding standards.
5.7.1.6 Each Party will multiply the tandem routed and end office routed
terminating MOUs by the appropriate rate contained in this Section to determine
the total monthly billing to each Party.
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO 251(c)(2)
6.1 SCOPE OF TRAFFIC
Section 6.0 prescribes parameters for certain trunk groups ("Access Toll
Connecting Trunks") to be established over the Interconnections specified in
Section 4.0 above, for the
21
transmission and routing of Exchange Access traffic between DTI Telephone
Exchange Service end users and IXCs via a SWBT access tandem.
6.2 TRUNK GROUP ARCHITECTURE AND TRAFFIC ROUTING
6.2.1 The Parties shall jointly establish Access Toll Connecting Trunks as
described in Appendix ITR, by which will jointly provide tandem-transported
Switched Exchange Access Services to IXCs to enable DTI's end users to
originate and terminate traffic to/from such IXCs.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Switched Exchange Access to allow DTI end users to
originate and terminate traffic to/from any IXCs which is connected to a SWBT
Access Tandem. In addition, the trunks shall be used to allow DTI's end users
to connect to, or be connected to, the 800 Services of any Telecommunications
Carrier connected to the SWBT Access Tandem.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 INFORMATION SERVICES TRAFFIC
7.1.1 At such time as the Parties agree to route intraLATA Information
Services Traffic to one another, they shall agree to exchange rating and
billing information to effectively allow the Parties to xxxx their end users
and to charge reciprocal rates.
7.2 LINE STATUS VERIFICATION (LSV)/BUSY LINE INTERRUPT (BLI) TRAFFIC
7.2.1 Each Party's operator bureau shall accept LSV and BLI inquiries from
the operator bureau of the other Party in order to allow transparent provision
of LSV/BLI Traffic between the Parties' networks. Only one LSV attempt will be
made per end user operator bureau call, and the applicable charge shall apply
whether or not the line is busy at the time of verification or if the called
party agrees to release the line. Only one BLI attempt will be made per end
user operator telephone call, and the applicable charge shall apply whether or
not the line is in use at the to time of interrupt or the called party releases
the line.
7.2.2 Each Party shall route LSV/BLI Traffic inquiries between the
Parties' respective operator bureaus over trunks described in Appendix ITR.
7.3 WIRELESS TRAFFIC
7.3.1 Appendix Wireless, attached hereto and incorporated by reference sets
forth the terms and conditions under which the Parties will distribute revenue
from their joint provision of Wireless Interconnection Service for mobile to
landline traffic terminating through the Parties' respective wireline switching
networks within a LATA. If one Party enters into an interconnection agreement
with a CMRS provider, Appendix Wireless shall no longer be
22
applicable between the Parties with respect to such CMRS providers, and the
other Party shall be obligated to enter into an agreement with such CMRS
provider for the termination of wireless to landline traffic.
7.3.2 DTI shall pay the Local Transit Traffic rate to SWBT for calls that
originate on DTI's network and are sent to SWBT for termination to a CMRS
Provider as long as such Traffic can be identified as wireless traffic. SWBT
shall pay the Local Transit Traffic rate to DTI for such calls that originate
on SWBT's network are sent through DTI for termination on a CMRS Provider's
network. Each Party shall be responsible for interconnection agreements with
CMRS providers for terminating compensation regarding traffic originating on
the Party's network and terminating on the CMRS provider's network.
7.3.3 When traffic is originated by either Party to a CMRS Provider, and
the traffic cannot be specifically identified as wireless traffic for purposes
of compensation between SWBT and DTI, the traffic will be rated either as
Local, or Access and the appropriate compensation rate shall be paid by the
originating Party to the transiting Party. The originating Party agrees to
indemnify the transiting Party for any claims of compensation that may be made
by the CMRS provider against the transiting Party regarding compensation for
such traffic.
8.0 SIGNALING
8.1 The SWBT signaling publications that describe the practices,
procedures and specifications generally utilized by SWBT for signaling purposes
and are listed in Appendix TP which is attached hereto and incorporated herein.
A copy of these publications have been provided to DTI.
8.2 The Parties will cooperate on the exchange of Transactional
Capabilities Application Part (TCAP) messages to facilitate interoperability of
CCS-based features between their respective networks, including all CLASS
features and functions, to the extent each Party offers such features and
functions to its end users. All CCS signaling parameters will be provided
including, without limitation, calling party number (CPN), originating line
information (OLI), calling party category and charge number.
9.0 NUMBERING
9.1 Nothing in this Agreement shall be construed to limit or otherwise
adversely impact in any manner either Party's right to employ or to request and
be assigned any North American Numbering Plan (NANP) number resources including,
but not limited to, central office (NXX) codes pursuant to the Central Office
Code Assignment Guidelines(1), or to establish, by
(1) Last published by the Industry Numbering Committee ("INC") as
INC 00-0000-000, Revision 4/7/95, formerly ICCF 00-0000-000.
23
tariff or otherwise, Exchanges and Rating Points corresponding to such NXX
codes. Each Party is responsible for administering the NXX codes it is
assigned.
9.2 At a minimum, in those Metropolitan Exchange Areas where DTI intends
to provide local exchange service, DTI shall obtain a separate NXX code for
each SWBT exchange or group of exchanges that share a common mandatory calling
scope as defined in SWBT tariffs. This will enable DTI and SWBT to identify
the jurisdictional nature of traffic for intercompany compensation until such
time as both Parties have implemented billing and routing capabilities to
determine traffic jurisdiction on a basis other than NXX codes.
9.3 Each Party agrees to make available to the other, up-to-date listings
of its own assigned NPA-NXX codes, along with associated Rating Points and
Exchanges.
9.4 To the extent SWBT serves as Central Office Code Administrator for a
given region, SWBT commits to treat DTI requests for assignment of central
office code(s) in a neutral and nondiscriminatory manner, consistent with
regulatory requirements, and (NXX) Central Office Code Assignment Guidelines.
9.5 Each Party is responsible to program and update its own switches and
network systems to recognize and route traffic to the other Party's assigned
NXX codes at all times. Neither Party shall impose fees or charges on the
other Party for such required programming and updating activities.
9.6 Each Party is responsible to input required data into the Routing Data
Base Systems (RDBS) and into the Bellcore Rating Administrative Data Systems
(BRADS) or other appropriate system(s) necessary to update the Local Exchange
Routing Guide (LERG), unless negotiated otherwise.
9.7 Neither Party is responsible for notifying the other Parties' end
users of any changes in dialing arrangements, including those due to NPA
exhaust, unless otherwise ordered by the Commission, the FCC, or a court.
9.8 NXX MIGRATION. Where either Party has activated an entire NXX for a
single end user, or activated more than half of an NXX for a single end user
with the remaining numbers in that NXX either reserved for future use or
otherwise unused, if such end user chooses to receive service from the other
Party, the first Party shall cooperate with the second Party to have the entire
NXX reassigned in the LERG (and associated industry databases, routing tables,
etc.) to an End Office operated by the second Party. Such transfer will
require development of a transition process to minimize impact on the Network
and on the end user(s)' service and will be subject to appropriate industry
lead times (currently forty-five (45) days) for movements of NXXs from one
switch to another. The Party to whom the NXX is migrated will pay NXX
migration charges of $10,000 per NXX to the Party formerly assigned the NXX.
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10.0 RESALE -- SECTIONS 251(b)(1); 251(c)(4); 252(d)(3); and 271(c)(2)
(B)(xiv);
10.1 AVAILABILITY OF SWBT RETAIL TELECOMMUNICATIONS SERVICES FOR RESALE
SWBT shall offer to DTI for resale at wholesale rates its
Telecommunications Services, as described in Section 251(c)(4) of the Act,
pursuant to the terms and conditions of Appendix Resale attached hereto and
incorporated herein by this reference.
10.2 AVAILABILITY OF DTI RETAIL TELECOMMUNICATION SERVICES FOR RESALE
DTI shall make available its Telecommunications Services for resale at wholesale
rates to SWBT in accordance with Section 251(b)(1) of the Act.
11.0 UNBUNDLED NETWORK ELEMENTS -- SECTIONS 251(c)(3), 271(c)(2)(B)
(ii),(iv),(v),(vi),(x)
11.1 SWBT shall provide DTI access to unbundled network elements for the
provision of a telecommunication service as described in Section 251(c)(3) and
271(c)(2)(B) of the Act, pursuant to the terms and conditions of Appendix UNE
attached hereto and incorporated herein by this reference.
11.2 DTI shall make available to SWBT access to its Unbundled Network
elements in accordance with Section 251 (c)(3) of the Act.
12.0 NOTICE OF CHANGES -- SECTION 251(c)(5)
Nothing in this Agreement shall limit either Party's ability to upgrade
its network through the incorporation of new equipment, new software or
otherwise. If a Party makes a change in its network which it believes will
materially affect the interoperability of its network with the other Party, the
Party making the change shall provide at least ninety (90) days advance written
notice of such change to the other Party. Notwithstanding the foregoing, if
either Party establishes additional tandems in an exchange area in which the
other Party offers local exchange service, that Party will provide the other
Party with not less than one-hundred eighty (180) days' advance notification of
same, and with greater notification when practicable. Both Parties agree to
coordinate interconnection matters consistent with the requirements of the
Americans with Disabilities Act (42 U.S.C. 12101) and with Sections 255 and 256
of the Act. In addition, the Parties will comply with the Network Disclosure
rules adopted by the FCC in CC Docket No. 96-98, Second Report and Order, as
may be amended from time to time. The Party upgrading its network shall be
solely responsible for the cost and effort of accommodating such changes in its
own network.
13.0 COLLOCATION -- SECTION 251(c)(6)
25
13.1 SWBT shall provide to DTI Physical Collocation space necessary for
Interconnection (pursuant to Section 4.0 of this Agreement) or access to
Network Elements on an unbundled basis except that SWBT may provide for Virtual
Collocation if SWBT demonstrates that Physical Collocation is not practical for
technical reasons or because of space limitations, as provided in Section
251(c)(6) of the Act. SWBT shall provide such Collocation for the purpose of
Interconnection or access to Network Elements on an unbundled basis, except as
otherwise mutually agreed to in writing by the Parties or as required by the
FCC or the appropriate Commission, subject to applicable federal and state
tariffs.
13.2 Except as otherwise ordered by the Commission or the FCC, or as
mutually agreed to by DTI and SWBT, Physical Collocation shall be available at
a Central Office Switch location classified as an end office location, a
serving wire center, a tandem office location, or a remote node that serves as
a rating point for special access or switched access transport.
14.0 NUMBER PORTABILITY--SECTIONS 251(b)(2) and 271(c)(2)(B)(xi)
14.1 The Parties shall provide to each other Interim Number Portability
(INP) on a reciprocal basis. Pursuant to the provisions in the Act, and in
accordance with the terms and conditions outlined in Appendix PORT, which is
attached hereto and incorporated herein, SWBT will provide DTI Interim Number
Portability through Remote Call Forwarding and Direct Inward Dialing technology
until Permanent Number Portability is implemented.
14.2 Once Permanent Number Portability is implemented, either Party may
withdraw, at any time and at its sole discretion, its INP offerings, subject to
thirty (30) day's advance notice to the other Party to allow the seamless and
transparent conversion of INP end user numbers to Permanent Number Portability.
15.0 DIALING PARITY--SECTION 251(b)(3); 271(c)(2)(B)(xii); and 271(e)(2)
15.1 The Parties shall provide Local Dialing Parity to each other as
required under Section 251 (b)(3) of the Act.
15.2 SWBT shall provide IntraLATA Dialing Parity in accordance with
Section 271(e)(2) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY - SECTION 251(b)(4) and 271(c)(2)(B)(iii)
Each Party shall provide the other Party access to its poles, ducts,
rights-of-way and conduits it owns or controls in accordance with Section 224
of the Act on terms, conditions and prices comparable to those offered to any
other entity pursuant to each Party's applicable tariffs and/or standard
agreements.
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17.0 DATABASE ACCESS--SECTION 271(c)(2)(B)(x)
In accordance with Section 27(c)(2)(B)(x) of the Act, SWBT shall provide
DTI with nondiscriminatory access to databases and associated signaling
necessary for call routing and completion. When requesting access to databases
not otherwise provided for in this Agreement, or appropriate interfaces,
regardless of whether they constitute unbundled Network Elements, DTI will use
the Network Element Bona Fide Request process. This process is defined in
Appendix UNE, which is attached hereto and incorporated herein by reference.
18.0 INTERCEPT REFERRAL ANNOUNCEMENTS
18.1 The Party formerly providing service to an end user shall provide a
Basic Referral announcement, reciprocally and free of charge on the abandoned
telephone number. The announcement states that the called number has been
disconnected or changed and provides the end user's new telephone number to the
extent that it is listed.
(a) Basic Intercept Referral Announcements are to be provided on
residential numbers for a minimum of thirty (30) days where facilities exist
and the threat of telephone number exhaustion is not imminent.
(b) Basic Intercept Referral Announcements for a single line business end
user and the primary listed telephone number for DID and "Centrex-type" end
users, shall be available for a minimum of thirty (30) days or the life of the
White Pages directory, whichever is greater. If the threat of telephone number
exhaustion becomes imminent for a particular Central Office, the service
provider may reissue a disconnected number prior to the expiration of the
directory, but no earlier than thirty (30) days after the disconnection of the
business telephone number.
19.0 COORDINATED REPAIR CALLS
19.1 To avoid and minimize the potential for end user confusion, each
Party shall inform their respective end users of their respective repair bureau
telephone number(s) to access such bureaus. In the event that either Party
receives a misdirected repair call, the Parties agree to employ the following
procedures for handling such calls:
(a) To the extent the correct provider can be determined, misdirected
repair calls will be referred to the proper provider of local exchange service
in a courteous manner, at no charge, and the end user will be provided the
correct contact telephone number.
(b) In responding to repair calls, neither Party shall make disparaging
remarks about each other, nor shall they use these repair calls as the basis for
internal referrals or to solicit customers or to market services, nor
27
shall they initiate extraneous communications beyond the direct referral to the
correct repair telephone number.
20.0 OTHER SERVICES 271(c)(B)(2)(vii) and 271(c)(2)(B)(viii)
20.1 WHITE PAGES. In accordance with Section 271 (c)(2)(B)(viii) of the
Act, SWBT will make nondiscriminatory access to White Pages service available
under the terms and conditions of Appendix WP, attached hereto and incorporated
by reference.
20.2 CALLING NAME INFORMATION. The Parties shall provide, on mutually
agreeable and reciprocal terms, each other with access to Calling Name
information of their respective end users whenever one Party initiates a query
from a Signaling System Point for such information associated with a call
terminating to an end user who subscribes to a calling name service. SWBT will
provide Calling Name Information in accordance with and under the terms and
conditions of Appendix CNAM, attached hereto and incorporated by reference.
20.3 BILLING/COLLECTING/REMITTING. The Parties will jointly agree to terms
and conditions for Billing, Collecting and Remitting for alternated billed
local message as described in Appendix BCR, attached hereto and incorporated by
reference.
20.4 911 AND E911 SERVICES. Pursuant to Section 271 (c)(2)(B)(vii) of the
Act, SWBT will make nondiscriminatory access to 911 and E911 services available
under the terms and conditions of Appendix 911, attached hereto and
incorporated by reference.
20.5 DIRECTORY ASSISTANCE (DA). Pursuant to Section 271 (c)(2)(B)(vii)(II)
of the Act, SWBT will provide nondiscriminatory access to DA services under the
terms and conditions identified in Appendix DA, attached hereto and
incorporated by reference.
20.6 OPERATOR SERVICES. Pursuant to Section 271 (c)(2)(B)(vii)(III) of the
Act, SWBT shall provide nondiscriminatory access to Operator Services under the
terms and conditions identified in Appendix OS, attached hereto and
incorporated by reference.
20.7 CLEARINGHOUSE SERVICES. To the extent requested by DTI, SWBT shall
provide for the tracking of message revenues from certain messages to
facilitate the transfer of revenues between the billing company the earning
company through the Clearinghouse Services provided by SWBT pursuant to the
terms and conditions in Appendix CH, attached hereto and incorporated by
reference.
20.8 HOSTING. At DTI's request, SWBT shall perform hosting
responsibilities for the provision of billable message data and/or access usage
data received from an DTI for distribution to the appropriate billing and/or
processing location or for delivery to an DTI of such data via SWBT's internal
network or the nationwide CMDS network pursuant to Appendix HOST, attached
hereto and incorporated by reference.
28
20.9 SIGNALING SYSTEM 7 INTERCONNECTION. At DTI's request, SWBT shall
perform SS7 interconnection services for DTI pursuant to Xxxxxxxx XX0, attached
hereto and incorporated by reference.
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES
21.1 SWBT and DTI shall each use their best efforts to meet the
Interconnection Activation Dates.
21.2 Each Party is individually responsible to provide facilities within
its network that are necessary for routing, transporting, measuring, and
billing traffic from the other Party's network and for delivering such traffic
to the other Party's network in the standard format compatible with SWBT's
network as referenced in Bellcore's BOC Notes on LEC Networks Practice No.
SR-TSV-002275, and to terminate the traffic it receives in that standard format
to the proper address on its network. The Parties are each solely responsible
for participation in and compliance with national network plans, including the
National Network Security Plan and the Emergency Preparedness Plan.
21.3 Neither Party shall use any service related to or use any of the
services or elements provided in this Agreement in any manner that interferes
with other persons in the use of their service, prevents other persons from
using their service, or otherwise impairs the quality of service to other
carriers or to either Party's end users, and either Party may discontinue or
refuse service, but only for so long as the other Party is violating this
provision. Upon such violation, either Party shall provide the other Party
notice of the violation at the earliest practicable time.
21.4 Each Party is solely responsible for the services it provides to its
end users and to other Telecommunications Carriers.
21.5 The Parties shall work cooperatively to minimize fraud associated
with third-number billed calls, calling card calls, and any other services
related to this Agreement.
21.6 At all times during the term of this Agreement, each Party shall keep
and maintain in force at each Party's expense all insurance required by law
(e.g. workers' compensation insurance) as well as general liability insurance
for personal injury or death to any one person, property damage resulting from
any one incident, automobile liability with coverage for bodily injury for
property damage. Upon request from the other Party, each Party shall provide to
the other Party evidence of such insurance (which may be provided through a
program of self insurance).
21.7 In addition to its indemnity obligations under Section 26.0, each
Party shall provide, in its tariffs and contracts with its end users that relate
to any Telecommunications Service provided or contemplated under this Agreement,
that in no case shall such Party or any of its agents, contractors or others
retained by such parties be liable to any end user or third party
29
for (i) any Loss relating to or arising out of this Agreement, whether in
contract or tort, that exceeds the amount such Party would have charged the
applicable end user for the service(s) or function(s) that gave rise to such
Loss, and (ii) any Consequential Damages.
21.8 Unless otherwise stated, each Party will render a monthly xxxx to the
other for service(s) provided hereunder. Remittance in full will be due within
thirty (30) days of that billing date. Interest shall apply on overdue amounts
(other than disputed amounts which are subject to Section 30.12) at the rate
specified in Section 30.12, unless otherwise specified in an applicable tariff.
Each Party reserves the right to net delinquent amounts against amounts
otherwise due the other.
21.9 SWBT is participating with the industry to develop standardized
methods through the OBF and shall implement ordering and billing
formats/processes consistent with industry guidelines as capabilities are
deployed. Where such guidelines are not available or SWBT decides not to fully
utilize industry guidelines, SWBT will provide DTI with information on its
ordering and billing format/process and requirements at the earliest
practicable time.
22.0 EFFECTIVE DATE, TERM, AND TERMINATION
22.1 This Agreement shall be effective ten (10) days after approval by the
Commission when it has determined that the Agreement complies with Sections 251
and 252 of the Act ("Effective Date").
22.2 The initial term of this Agreement shall be one (1) year (the "Term")
which shall commence on the Date of Execution. Absent the receipt by one Party
of written notice from the other Party at least sixty (60) days prior to the
expiration of the Term to the effect that such Party does not intend to extend
the Term of this Agreement, this Agreement shall automatically renew and remain
in full force and effect on and after the expiration of the Term until
terminated by either Party pursuant to Section 22.3, below.
22.3 Either Party may terminate this Agreement in the event that the other
Party fails to perform a material obligation that disrupts the operation of
either Party's network and/or end user service and fails to cure such material
nonperformance within forty-five (45) days after written notice thereof.
22.4 If pursuant to Section 22.2, above, this Agreement continues in full
force and effect after the expiration of the Term, either Party may terminate
this Agreement ninety (90) days after delivering written notice to the other
Party of its intention to terminate this Agreement, subject to Section 22.5,
below. Neither Party shall have any liability to the other Party for
termination of this Agreement pursuant to this Section 22.4 other than its
obligations under Section 22.5, below.
22.5 Upon termination or expiration of this Agreement in accordance with
this Section 22.0, above:
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(a) each-Party shall comply immediately with its obligations set forth in
Section 30.6, below; and
(b) each Party shall promptly pay all amounts (including any late payment
charges) owed under this Agreement; and
(c) each Party 's indemnification obligations shall survive.
22.6 If upon expiration or termination, the Parties are negotiating a
successor agreement; during such period, each Party shall continue to perform
its obligations and provide the services described herein that are to be
included in the successor agreement until such time as the latter agreement
becomes effective; provided however, that if the Parties are unable to reach
agreement within six (6) months after termination or expiration of this
Agreement, either Party has the right to submit this matter to the Commission
for resolution. Until a survivor agreement is reached or the Commission
resolves the matter, whichever is sooner, the terms, conditions, rates, and
charges stated herein will continue to apply, subject to a true-up based on the
Commission action, if any.
22.7 Except as set forth in Section 28.5, below, no remedy set forth in
this Agreement is intended to be exclusive and each and every remedy shall be
cumulative and in addition to any other rights or remedies now or hereafter
existing under applicable law or otherwise.
23.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR
RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES,
FUNCTIONS AND PRODUCTS IT PROVIDES UNDER OR CONTEMPLATED BY THIS AGREEMENT AND
THE PARTIES DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS
FOR A PARTICULAR PURPOSE. ADDITIONALLY, NEITHER SWBT NOR DTI ASSUMES
RESPONSIBILITY WITH REGARD TO THE CORRECTNESS OF DATA OR INFORMATION SUPPLIED
BY THE OTHER WHEN THIS DATA OR INFORMATION IS ACCESSED AND USED BY A THIRD
PARTY.
24.0 CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION
Each Party will abide by applicable state or federal laws and regulations
in obtaining end user authorization prior to changing end user's local service
provider to itself and in assuming responsibility for any applicable charges as
specified in Section 258 (b) of the Telecommunications Act of 1996. The
Parties shall make authorization available to each other upon request and at no
charge. Only an end user can initiate a challenge to a change in its local
exchange service provider. If an end user notifies SWBT or DTI that the end
user requests local
31
exchange service, the Party receiving such request shall be free to immediately
provide service to such end user. When an end user changes or withdraws
authorization, each Party shall release customer-specific facilities in
accordance with the end user's direction or the end user's authorized agent.
Further, when an end user abandons the premise, SWBT is free to reclaim the
unbundled network element facilities for use by another customer and is free to
issue service orders required to reclaim such facilities.
25.0 SEVERABILITY
25.1 The Parties negotiated the services, arrangements, Interconnection,
terms and conditions of this Agreement by the Parties as a total arrangement
and are intended to be nonseverable, subject only to Section 30.16 of this
Agreement.
25.2 In the event the Commission, the FCC, or a court rejects any portion
or determines that any provision of this Agreement is contrary to law, or is
invalid or unenforceable for any reason, the Parties shall continue to be bound
by the terms of this Agreement, insofar as possible, except for the portion
rejected or determined to be unlawful, invalid, or unenforceable. In such
event, the Parties shall negotiate in good faith to replace the rejected,
unlawful, invalid, or unenforceable provision and shall not discontinue service
to the other party during such period if to do so would disrupt existing
service being provided to an end user. Nothing in this Agreement shall be
construed as requiring or permitting either Party to contravene any mandatory
requirement of federal or state law, or any regulations or orders adopted
pursuant to such law.
26.0 INTELLECTUAL PROPERTY
LSP is responsible for obtaining any license or right to use agreement
associated with a Unbundled Network Element purchased from SWBT. SWBT will
provide a list of all known and necessary licenses or right to use agreements
applicable to the subject Network Element(s) within seven days of a request for
such a list by LSP. SWBT agrees to use its best efforts to facilitate the
obtaining of any necessary license or right to use agreement. SWBT makes no
warranties, express or implied, concerning LSP's (or any third party's) rights
with respect to intellectual property (including with limitation, patent,
copyright, and trade secret rights) or contract rights associated with LSP's
rights to interconnect with SWBT's network and to Unbundled Network Elements.
27.0. INDEMNIFICATION
27.1 Except as otherwise provided herein or in specific appendices, each
Party shall be responsible only for service(s) and facility(ies) which are
provided by that Party, its authorized agents, subcontractors, or others
retained by such parties, and neither Party shall bear any responsibility for
the service(s) and facility(ies) provided by the other Party, its agents,
subcontractors, or others retained by such parties.
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27.2 Except as otherwise provided herein or in specific appendices, and to
the extent not prohibited by law and not otherwise controlled by tariff, each
Party (the "Indemnifying Party") shall defend and indemnify the other Party
(the "Indemnified Party") and hold such Indemnified Party harmless against any
Loss to a third party arising out of the negligence or willful misconduct by
such Indemnifying Party, its agents, its end user, contractors, or others
retained by such parties, in connection with the indemnifying provision of
services or functions under this Agreement.
27.3 In the case of any Loss alleged or made by an end user of either
Party, the Party whose end user alleged or made such Loss (Indemnifying Party)
shall defend and indemnify the other Party (Indemnified Party) against any and
all such claims or Loss by its end users regardless of whether the underlying
service was provided or unbundled element was provisioned by the Indemnified
Party, unless the Loss was caused by the gross negligence or intentional
misconduct of the other (Indemnified) Party.
27.4 LSP agrees to indemnify, defend and hold harmless SWBT from any Loss
arising out of SWBT's provision of 911 services or out of LSP's end users' use
of the 911 service, whether suffered, made, instituted, or asserted by LSP or
its end users, including for any personal injury or death of any person or
persons, except for Loss which is the direct result of SWBT's own negligence or
willful misconduct.
27.5 Each Party shall be indemnified, defended and held harmless by the
other Party against any Loss arising from a Party's use of services or elements
provided under this Agreement involving: tort claims, including claims for
libel, slander, invasion of privacy, or infringement of copyright arising from
a Party's own communications or the communications of its end users.
27.6 SWBT shall be indemnified, defended, and held harmless by the LSP for
claims for patent, trademark, infringement or other infringement or
intellectual property rights, arising from the LSP's use of services or
unbundled elements provided under this Agreement.
27.7 The Indemnifying Party agrees to defend any suit brought against the
Indemnified Party for any Loss identified in this Section or specific
appendices. The Indemnified Party agree to notify the Indemnifying Party
promptly in writing of any written claims, lawsuits or demands for which the
Indemnifying Party may be responsible under this Agreement. The Indemnified
Party shall cooperate in every reasonable way to facilitate defense or
settlement. The Indemnifying Party shall have the right to control and conduct
the defense and settlement of any action or claim subject to the consultation
of the Indemnified Party. The Indemnifying Party shall not be responsible for
any settlement unless the Indemnifying Party approved such settlement in
advance and agrees to be bound by the settlement agreement.
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28.0 LIMITATION OF LIABILITY
28.1 Except for indemnity obligations under this Agreement, or except as
otherwise provided in specific appendices, each Party's liability to the other
Party for any Loss relating to or arising out of any negligent act or omission
in its performance under this Agreement, whether in contract or tort, shall not
exceed in total the amount SWBT or LSP has to or would have charged the other
Party for the affected service(s) or function(s) which were not performed or
were otherwise improperly performed.
28.2 Except for Losses alleged or made by an end user of either Party, or
except as otherwise provided in specific appendices, in the case of any Loss
alleged or made by a third party arising under the negligence or willful
misconduct of both Parties, each Party shall bear, and its obligation under
this section shall be limited to, that portion (as mutually agreed to by the
Parties) of the resulting expense caused by its own negligence or willful
misconduct or that of its agents, servants, contractors, or others acting in
aid or concert with it.
28.3 In no event shall either Party have any liability whatsoever to the
other Party for any indirect, special, consequential, incidental, or punitive
damages, including but not limited to, loss of anticipated profits or revenue
or other economic loss in connection with or arising from anything said,
omitted, or done hereunder (collectively, "Consequential Damages"), even if the
other Party has been advised of the possibility of such damages; provided that
the foregoing shall not limit a Party's obligation under this Agreement to
indemnify, defend, and hold the other Party harmless against any amounts
payable to a third party, including any losses, costs, fines, penalties,
criminal or civil judgments or settlements, expenses (including attorney's
fees) and Consequential Damages of such third party.
29.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES
29.1 CERTAIN DEFINITIONS. When used in this Section 29.0, the following
terms shall have the meanings indicated:
29.1.1 "SPECIFIED PERFORMANCE BREACH" means the failure by SWBT to
meet the Performance Criteria for any Specified Activity for a period of
three (3) consecutive calendar months.
29.1.2 "Specified Activity" means any of the following activities:
(i) the installation by SWBT of unbundled elements associated with
DTI end user Lines;
(ii) SWBT's provision of Interim Number Portability; or
(iii) the repair of out of service problems for DTI ("Out of Service
Repairs").
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29.1.3 "Performance Criteria" means, with respect to each calendar month
during the term of this Agreement, the performance by SWBT during such month of
each Specified Activity shown below within the time interval shown in at least
eighty percent (80%) of the covered instances:
SPECIFIED ACTIVITY PERFORMANCE INTERVAL DATE
(i) DTI END USER LINES
1-l0 Lines per Service Order five (5) business days from SWBT's
Receipt of valid Service Order
11-20 Lines per Service Order ten (10) business days from SWBT's
Receipt of valid Service Order
21+ Lines per Service Order To Be Negotiated
(ii) INTERIM NUMBER PORTABILITY
1-10 Numbers per Service Order five (5) business days from SWBT's
Receipt of valid Service Order
11-20 Numbers per Service Order ten (10) business days from SWBT's
Receipt of valid Service Order
21+ Numbers per Service Order To be Negotiated
(iii) OUT-OF-SERVICE REPAIRS Less than twenty-four (24) hours from
SWBT's Receipt of Notification of Out-
of-Service Condition
29.2 SPECIFIED PERFORMANCE BREACH. In recognition of the: (1) loss of end
user opportunities, revenues and goodwill which DTI might sustain in the event
of a Specified Performance Breach; (2) the uncertainty, in the event of such a
Specified Performance Breach, of DTI having available to it customer
opportunities similar to those opportunities currently available to DTI; and
(3) the difficulty of accurately ascertaining the amount of damages DTI would
sustain in the event of such a Specified Performance Breach, SWBT agrees to pay
DTI, subject to Section 29.4 below, damages as set forth in Section 29.3 below
in the event of the occurrence of a Specified Performance Breach.
29.3 LIQUIDATED DAMAGES. The damages payable by SWBT to DTI as a result of
a Specified Performance Breach shall be $25,000 for each Specified Performance
Breach (collectively, the "Liquidated Damages"). DTI and SWBT agree and
acknowledge that: (a) the
35
Liquidated Damages are not a penalty and have been determined based upon the
facts and circumstances of DTI and SWBT at the time of the negotiation and
entering into of this Agreement, with due regard given to the performance
expectations of each Party; (b) the Liquidated Damages constitute a reasonable
approximation of the damages DTI would sustain if its damages were readily
ascertainable; and (c) DTI shall not be required to provide any proof of the
Liquidated Damages.
29.4 LIMITATIONS. In no event shall SWBT be liable to pay the Liquidated
Damages if SWBT's failure to meet or exceed any of the Performance Criteria is
caused, directly or indirectly, by a Delaying Event. A "Delaying Event" means:
(a) a failure by DTI to perform any of its obligations set forth in this
Agreement (including, without limitation, the Implementation Schedule and the
Joint Implementation Process); (b) any delay, act or failure to act by an end
user, agent or subcontractor of DTI; (c) any Force Majeure Event; or (d) for
INP, where memory limitations in the switch in the SWBT serving office cannot
accommodate the request. If a Delaying Event: (i) prevents SWBT from performing
a Specified Activity, then such Specified Activity shall be excluded from the
calculation of SWBT's compliance with the Performance Criteria; or (ii) only
suspends SWBT's ability to timely perform the Specified Activity, the
applicable time frame in which SWBT's compliance with the Performance Criteria
is measured shall be extended on an hour-for-hour or day-for-day basis, as
applicable, equal to the duration of the Delaying Event.
29.5 SOLE REMEDY. The Liquidated Damages shall be the sole and exclusive
remedy of DTI for SWBT's breach of the Performance Criteria or a Specified
Performance Breach as described in this Section 28.0 and shall be in lieu of
any other damages or credit DTI might otherwise seek for such breach of the
Performance Criteria or a Specified Performance Breach through any claim or
suit brought under any contract or tariff.
29.6 RECORDS. SWBT shall maintain complete and accurate records, on a
monthly basis, of its performance under this Agreement of each Specified
Activity and its compliance with the Performance Criteria. SWBT shall provide
to DTI such records in a self-reporting format on a monthly basis.
Notwithstanding Section 31.6.1, below, the Parties agree that such records
shall be deemed "Proprietary Information" under Section 31.6, below.
30.0 REGULATORY APPROVAL
30.1 The Parties understand and agree that this Agreement will be filed
with the Commission and may thereafter be filed with the FCC. The Parties
believe in good faith and agree that the services to be provided under this
Agreement satisfy the specifically mentioned sections of the Act and are in the
public interest. Each Party covenants and agrees to fully support approval of
this Agreement by the Commission or the FCC under Section 252 of the Act
without modification.
30.2 The Parties agree that the performance of the terms of this
Agreement will satisfy SWBT's obligation to provide Interconnection
under Section 251 of the Act, and the
36
requirements of the Competitive Checklist, under Section 271 of the Act. DTI
represents that it is, or intends to become, a provider of Telephone Exchange
Service to residential and business subscribers offered exclusively over its
own Telephone Exchange Service facilities or predominantly over its own
Telephone Exchange Service facilities in combination with the use of unbundled
Network Elements purchased from another entity and the resale of the
Telecommunications Services of other carriers.
31.0 MISCELLANEOUS
31.1 AUTHORIZATION.
(a) SWBT is a corporation duly organized, validly existing and in good
standing under the laws of the State of Missouri and has full power and
authority to execute and deliver this Agreement and to perform the obligations
hereunder.
(b) DTI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oklahoma and has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder.
31.2 COMPLIANCE AND CERTIFICATION.
31.2.1 Each Party shall comply with all federal, state, and local laws,
rules, and regulations applicable to its performance under this Agreement.
31.2.2 Each Party warrants that it has obtained all necessary state
certification required in those states in which it has ordered services from
the other Party pursuant to this Agreement. Upon request by any state
governmental entity, each Party shall provide proof of certification.
31.2.3 Each Party represents and warrants that any equipment, facilities
or services provided to the other Party under this Agreement comply with the
Communications Law Enforcement Act ("CALEA"). Each Party shall indemnify and
hold the other Party harmless from any and all penalties imposed upon the other
Party for such noncompliance and shall at the non-compliant Party's sole cost
and expense, modify or replace any equipment, facilities or services provided
to the other Party under this Agreement to ensure that such equipment,
facilities and services fully comply with CALEA.
31.3 LAW ENFORCEMENT.
31.3.1 SWBT and DTI shall handle law enforcement requests as follows:
37
(a) Intercept Devices: Local and federal law enforcement agencies
periodically request information or assistance from local telephone service
providers. When either Party receives a request associated with an end user of
the other Party, it shall refer such request to the Party that serves such end
user, unless the request directs the receiving Party to attach a pen register,
trap-and-trace or form of intercept on the Party's facilities, in which case
that Party shall comply with any valid request.
(b) Subpoenas: If a Party receives a subpoena for information concerning
an end user the Party knows to be an end user of the other Party, it shall
refer the subpoena to the requesting party with an indication that the other
Party is the responsible company, unless the subpoena requests records for a
period of time during which the Party was the end user's service provider, in
which case the Party will respond to any valid request.
(c) Emergencies: If a Party receives a request from a law enforcement
agency for temporary number change, temporary disconnect, or one-way denial of
outbound calls for an end user of the other Party by the receiving Party's
switch, that Party will comply with an valid emergency request. However,
neither Party shall be held liable for any claims or damages arising from
compliance with such requests on behalf of the other Party's end user and the
Party serving such end user agrees to indemnify and hold the other Party
harmless against any and all such claims.
31.4 INDEPENDENT CONTRACTOR. Each Party and each Party's contractor shall
be solely responsible for the withholding or payment of all applicable federal,
state and local income taxes, social security taxes and other payroll taxes
with respect to its employees, as well as any taxes, contributions or other
obligations imposed by applicable state unemployment or workers' compensation
acts. Each Party has sole authority and responsibility to hire, fire and
otherwise control its employees.
31.5 FORCE MAJEURE. Neither Party shall be liable for any delay or failure
in performance of any part of this Agreement from any cause beyond its control
and without its fault or negligence including, without limitation, acts of
nature, acts of civil or military authority, government regulations, embargoes,
epidemics, terrorist acts, riots, insurrections, fires, explosions, earthquakes,
nuclear accidents, floods, work stoppages, equipment failure, cable cuts, power
blackouts, volcanic action, other major environmental disturbances, unusually
severe weather conditions, inability to secure products or services of other
persons or transportation facilities or acts or omissions of transportation
carriers In such event, the Party affected shall, upon giving prompt notice to
the other Party, be excused from such performance on a day-to-day basis to the
extent of such interference (and the other Party shall likewise be excused from
38
performance of its obligations on a day-for-day basis to the extent such
Party's obligations related to the performance so interfered with). The
affected Party shall use its best efforts to avoid or remove the cause of
nonperformance and both Parties shall proceed to perform with dispatch once the
causes are removed or cease.
31.6 CONFIDENTIALITY.
31.6.1 All information, including but not limited to specifications,
microfilm, photocopies, magnetic disks, magnetic tapes, drawings, sketches,
models, samples, tools, technical information, data, employee records, maps,
financial reports, and market data; (i) furnished by one Party (the "Disclosing
Party") to the other Party (the "Receiving Party") dealing with
customer-specific, facility-specific, or usage-specific information, other than
customer information communicated for the purpose of publication or directory
database inclusion, 911, call processing, billing or settlement or as otherwise
mutually agreed upon; or (ii) in written, graphic, electromagnetic, or other
tangible form and marked at the time of delivery as "Confidential" or
"Proprietary;" or (iii) communicated orally and declared to the Receiving Party
at the time of delivery, or by written notice given to the Receiving Party
within ten (10) days after declaration to be "Confidential" or "Proprietary"
(collectively referred to as "Proprietary Information"), shall remain the
property of the Disclosing Party.
31.6.2 Upon request by the Disclosing Party, the Receiving Party shall
return all tangible copies of Proprietary Information, whether written,
graphic, or otherwise. In the event of the expiration or termination of this
Agreement for any reason whatsoever, each Party shall return to the other Party
or destroy all Proprietary Information and other documents, work papers and
other material (including all copies thereof) obtained from the other Party in
connection with this Agreement.
31.6.3 Each Party shall keep all the other Party's Proprietary Information
confidential in the same manner in which it keeps its own Proprietary
Information confidential, and shall use the other Party's Proprietary
Information only for performing the covenants contained in the Agreement and
shall disclose such Proprietary Information only to those employees,
contractors, agents or Affiliates who have a need to know. Neither Party shall
use the other Party's Proprietary Information for any other purpose except upon
such terms and conditions as may be agreed upon between the Parties in writing.
31.6.4 Unless otherwise agreed, the obligations of confidentiality and
nonuse set forth in the Agreement do not apply to such Proprietary Information
that:
(a) was at the time of receipt, already known to the Receiving Party, free
of any obligation to keep confidential and evidenced by written records
prepared prior to delivery by the Disclosing Party;
(b) is, or becomes publicly known through no wrongful act of the receiving
Party;
39
(c) is rightfully received from a third person having no direct or
indirect secrecy or confidentiality obligation to the Disclosing Party with
respect to such information;
(d) is independently developed by an employee, agent, or contractor of the
Receiving Party which individual is not involved in any manner with the
provision of services pursuant to the Agreement and does not have any direct or
indirect access to the Proprietary Information;
(e) is disclosed to a third person by the Disclosing Party without similar
restrictions on such third person's rights;
(f) is approved for release by written authorization of the Disclosing
Party;
(g) is required to be made public by the Receiving Party pursuant to
applicable law or regulation provided that the Receiving party shall provide
the Disclosing Party with written notice of such requirement as soon as
possible and prior to such disclosure. The Disclosing Party may then either
seek appropriate protective relief from all or part of such requirement or, if
it fails to successfully do so, it shall be deemed to have waived the Receiving
Party's compliance with Section 31.6 with respect to all or part of such
requirement. The Receiving Party shall use all commercially reasonable efforts
to cooperate with the Disclosing Party in attempting to obtain any protective
relief which such Disclosing Party chooses to obtain. Notwithstanding the
foregoing, SWBT shall be entitled to disclose confidential information on a
confidential basis to regulatory agencies upon request for information as to
SWBT's activities under the Act.
31.6.5 Notwithstanding any other provision of this Agreement, the
Proprietary Information provisions of this Agreement shall apply to all
information furnished by either Party to the other in furtherance of the
purpose of this Agreement, even if furnished before the date of this Agreement.
31.6.6 Pursuant to Section 222(b) of the Act, both parties agree to limit
their use of Proprietary Information received from the other to the permitted
purposed identified in the Act.
31.7 GOVERNING LAW. For all claims under this Agreement that are based
upon issues within the jurisdiction (primary or otherwise) of the FCC, the
exclusive jurisdiction and remedy for all such claims shall be as provided for
by the FCC and the Act. For all claims under this Agreement that are based
upon issues within the jurisdiction (primary or otherwise) of the Commission,
the exclusive jurisdiction for all such claims shall be with such Commission,
and
40
the exclusive remedy for such claims shall be as provided for by such
Commission. In all other respects, this Agreement shall be governed by the
domestic laws of the State of Missouri without reference to conflict of law
provisions.
31.8 TAXES.
31.8.1 Each Party purchasing services hereunder shall pay or otherwise be
responsible for all federal, state, or local sales, use, excise, gross
receipts, transaction or similar taxes, fees, or surcharges (hereinafter "Tax")
imposed on or with respect to the services provided by or to such Party, except
for any Tax on either party's corporate existence, status, or income. Whenever
possible, these amounts shall be billed as a separate item on the invoice. To
the extent a sale is claimed to be for resale tax exemption, the purchasing
party shall furnish the providing party a proper resale tax exemption
certificate as authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption. Failure to timely provide
said resale tax exemption certificate will result in no exemption being
available to the purchasing Party until such time as the purchasing Party
presents a valid certification. Failure to timely provide said resale tax
exemption certificate will result in no exemption being available to the
purchasing Party until such time as the purchasing Party presents a valid
certificate.
31.8.2 With respect to any purchase of services, facilities or other
arrangements, if any Tax is required or permitted by applicable law to be
collected from the purchasing party by the providing party, then: (i) the
providing party shall xxxx the purchasing party for such Tax; (ii) the
purchasing party shall remit such Tax to the providing party; and (iii) the
providing party shall remit such collected Tax to the applicable taxing
authority.
31.8.3 With respect to any purchase hereunder of services, facilities or
arrangements that are resold to a third party, if any Tax is imposed by
applicable law on the end user in connection with any such purchase, then: (i)
the purchasing party shall be required to impose and/or collect such Tax from
the end user; and (ii) the purchasing party shall remit such Tax to the
applicable taxing authority. The purchasing party agrees to indemnify and hold
harmless the providing party on an after-tax basis for any costs incurred by
the providing party as a result of actions taken by the applicable taxing
authority to collect the Tax from the providing party due to the failure of the
purchasing party to pay or collect and remit such tax to such authority.
31.8.4 If the providing party fails to collect any Tax as required herein,
then, as between the providing party and the purchasing party: (i) the
purchasing party shall remain liable for such uncollected Tax; and (ii) the
providing party shall be liable for any penalty and interest assessed with
respect to such uncollected Tax by such authority. However, if the purchasing
party fails to pay any taxes properly billed, then, as between the providing
party and the purchasing party, the purchasing party will be solely responsible
for payment of the taxes, penalty and interest.
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31.8.5 If the purchasing party fails to impose and/or collect any Tax from
end users as required herein, then, as between the providing party and the
purchasing party, the purchasing party shall remain liable for such uncollected
Tax and any interest and penalty assessed thereon with respect to the
uncollected Tax by the applicable taxing authority. With respect to any Tax
that the purchasing party has agreed to pay or impose on and/or collect from
end users, the purchasing party agrees to indemnify and hold harmless the
providing party on an after-tax basis for any costs incurred by the providing
party as a result of actions taken by the applicable taxing authority to
collect the Tax from the providing Party due to the failure of the purchasing
party to pay or collect and remit such Tax to such authority.
31.9 NON-ASSIGNMENT. This Agreement shall be binding upon every subsidiary
and Affiliate of either Party that is engaged in providing Telephone Exchange
and Exchange Access services in any territory within which SWBT is an Incumbent
Local Exchange Carrier as of the date of this Agreement (the "SWBT Territory")
and shall continue to be binding upon all such entities regardless of any
subsequent change in their ownership. Each Party covenants that, if it sells
or otherwise transfers to a third party its Telephone Exchange and Exchange
Access network facilities within the SWBT Territory, or any portion thereof, to
a third party, it will require as a condition of such transfer that the
transferee agree to be bound by this Agreement with respect to services
provided over the transferred facilities. Except as provided in this
paragraph, neither Party may assign or transfer (whether by operation of law or
otherwise) this Agreement (or any rights or obligations hereunder) to a third
party without the prior written consent of the other Party; provided that each
Party may assign this Agreement to a corporate Affiliate or an entity under its
common control or an entity acquiring all or substantially all of its assets or
equity by providing prompt written notice to the other Party of such assignment
or transfer. Any attempted assignment or transfer that is not permitted is
void ab initio. Without limiting the generality of the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the Parties'
respective successors and assigns.
31.10 NON-WAIVER. Failure of either Party to insist on performance of any
term or condition of this Agreement or to exercise any right or privilege
hereunder shall not be construed as a continuing or future waiver of such term,
condition, right or privilege.
31.11 AUDITS. Each Party to this Agreement will be responsible for the
accuracy and quality of its data as submitted to the respective Parties
involved.
31.11.1 Upon reasonable written notice and at its own expense, each Party
or its authorized representative (providing such authorized representative does
not have a conflict of interest related to other matters before one of the
Parties) shall have the right to conduct an audit of the other Party to give
assurances of compliance with the provisions of this Agreement; provided, that
neither Party may request more than two (2) such audits within any twelve (12)
month period. This includes on-site audits at the other Party's or the Party's
vendor locations. Each Party, whether or not in connection with an audit,
shall maintain reasonable records for a minimum of twenty-four (24) months and
provide the other Party with reasonable access to such information as is
necessary to determine amounts receivable or payable under this Agreement.
42
Each Party's right to access information for audit purposes is limited to data
not in excess of twenty-four (24) months in age.
31.12 DISPUTED AMOUNTS.
31.12.1 No claims, under this Agreement or its Appendices, shall be
brought for disputed amounts more than twenty-four (24) months from the date of
occurrence which gives rise to the dispute. Under this Section 31.12, if any
portion of an amount due to a Party (the "Billing Party") under this Agreement
is subject to a bona fide dispute between the Parties, the Party billed (the
"Non-Paying Party") shall within sixty (60) days of its receipt of the invoice
containing such disputed amount give notice to the Billing Party of the amounts
it disputes ("Disputed Amounts") and include in such notice the specific
details and reasons for disputing each item. The Non-Paying Party shall pay
when due: (i) all undisputed amounts to the Billing Party; and (ii) all
Disputed Amounts to Billing Party.
31.12.2 If the Parties are unable to resolve the issues related to the
Disputed Amounts in the normal course of business within sixty (60) days after
delivery to the Billing Party of notice of the Disputed Amounts, each of the
Parties shall appoint a designated representative who has authority to settle
the dispute and who is at a higher level of management than the persons with
direct responsibility for administration of this Agreement. The designated
representatives shall meet as often as they reasonably deem necessary in order
to discuss the dispute and negotiate in good faith in an effort to resolve such
dispute.
31.12.3 If the Parties are unable to resolve issues related to the
Disputed Amounts within forty-five (45) days after the Parties' appointment of
designated representatives pursuant to Section 30.12.2, above, then either
Party may file a complaint with the Commission to resolve such issues or
proceed with any other remedy pursuant to law or equity. The Commission may
direct release of any or all funds (including any accrued interest) in the
escrow account, plus applicable late fees, to be paid to either Party.
31.12.4 The Parties agree that all negotiations pursuant to this Section
30.12 shall remain confidential and shall be treated as compromise and
settlement negotiations for purposes of the Federal Rules of Evidence and state
rules of evidence.
31.12.5 Any undisputed amounts not paid when due shall accrue interest
from the date such amounts were due at the lesser of: (i) one and one-half
percent (l-1/2%) per month; or (ii) the highest rate of interest that may be
charged under applicable law.
31.13 DISPUTE RESOLUTION.
31.13.1 No claims shall be brought for disputes arising under this
Agreement or its Appendices more than twenty-four (24) months from the date of
occurrence which gives rise to the dispute.
43
31.13.2 For disputes other than disputed amounts under this Agreement or
its Appendices, each Party shall appoint a designated representative as set
forth in Section 31.12.2, above, and if unable to resolve the dispute, proceed
as set forth in Section 31.12.3, above.
31.14 NOTICES. Any notice to a Party required or permitted under this
Agreement shall be in writing and shall be deemed to have been received on the
date of service if served personally; on the date receipt is acknowledged in
writing by the recipient if delivered by regular mail; or on the date stated on
the receipt if delivered by certified or registered mail or by a courier
service that obtains a written receipt. Notice may also be provided by
facsimile, which shall be effective on the next Business Day following the date
of transmission as reflected in the facsimile confirmation sheet. "Business
Day" shall mean Monday through Friday, SWBT/DTI holidays excepted. Any notice
shall be delivered using one of the alternatives mentioned in this section and
shall be directed to the applicable address indicated below or such address as
the Party to be notified has designated by giving notice in compliance with
this section, except that notices to a Party's twenty-four (24) hour contact
number shall be by telephone and/or facsimile and shall be deemed to have been
received on the date transmitted.
NOTICE CONTACT DTI CONTACT SWBT CONTACT
NAME/TITLE Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxx
STREET ADDRESS 00000 Xxxxxxx Xx. One Xxxx Xxxxx, 000.00
XXXX, XXXXX, ZIP CODE Xx. Xxxxx, XX 00000 Xxxxxx, XX 00000
TELEPHONE NUMBER 000-000-0000 000-000-0000
FAX NUMBER 000-000-0000 000-000-0000
24-HOUR NETWORK MGMT CONTACT DTI CONTACT SWBT CONTACT
NAME/TITLE Xxxx Xxxxxxx NSMC Control
TELEPHONE NUMBER 000-000-0000 0-000-000-0000
FAX NUMBER 000-000-0000 0-000-000-0000
31.15 PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS.
31.15.1 The Parties agree not to use in any advertising or sales
promotion, press releases, or other publicity matters any endorsements, direct
or indirect quotes, or pictures implying endorsement by the other Party or any
of its employees without such Party's prior written approval. The Parties will
submit to each other for written approval, prior to publication, all publicity
matters that mention or display one another's name and/or marks or contain
language from which a connection to said name and/or marks may be inferred or
implied; the Party to whom a request is directed shall respond promptly.
Nothing herein, however, shall be construed as preventing either Party from
publicly stating the fact that it has executed this Agreement with the other
Party.
44
31.15.2 Nothing in this Agreement shall grant, suggest, or imply any
authority for one Party to use the name, trademarks, service marks, or trade
names of the other for commercial purposes without prior written approval.
31.16 SECTION 252(i) OBLIGATIONS. If either Party enters into an
agreement (the "Other Agreement") approved by the Commission or FCC pursuant to
Section 252 of the Act (regardless of whether the approved agreement was
negotiated or arbitrated) which provides for the provision of arrangements
covered in this Agreement to another requesting Telecommunications Carrier,
including an Affiliate, such Party shall make available to the other Party such
arrangements upon the same rates, terms and conditions as those provided in the
Other Agreement. At its sole option, the other Party may avail itself of
either: (i) the Other Agreement in its entirety; or (ii) the prices, terms and
conditions of the Other Agreement that directly relate to any of the following
duties as a whole:
(a) Interconnection - Section 251(c)(2); 252(d)(1); and 271(c)(2)(B(i) of
the Act; or
(b) Exchange Access - Section 251(c)(2) and 271(c)(2)(B)(ii) of the Act;
or
(c) Unbundling - Section 251(c)(3) and 271(c)(2)(B)(ii) of the Act; or
(d) Resale - Section 251(c)(4) and 271(c)(2)(B)(xiv) of the Act; or
(e) Collocation - Section 251(c)(6) and 271(c)(2)(B)(i) of the Act; or
(f) Number Portability - Section 251(b)(2) and 271(c)(2)(B)(xi) of the
Act; or
(g) Database Access - Section 271(c)(2)(B)(x) of the Act; or
(h) Access to Rights of Way - Section 251(b)(4) and 271(c)(2)(B)(iii) of
the Act; or
(i) Operator Services - Section 271(c)(2)(B)(vii)(III); or
(j) Directory Assistance - Section 271(c)(2)(B)(vii)(II).
31.17 JOINT WORK PRODUCT. This Agreement is the joint work product of
the Parties and has been negotiated by the Parties and their respective counsel
and shall be fairly interpreted in accordance with its terms and, in the event
of any ambiguities, no inferences shall be drawn against either Party.
31.18 INTERVENING LAW. This Agreement is entered into as a result of
both private negotiation between the Parties and the incorporation of some of
the results of arbitration by the Commission. If the actions of Oklahoma or
federal legislative bodies, courts, or regulatory agencies of competent
jurisdiction invalidate, modify, or stay the enforcement of laws or regulations
that were the basis for a provision of the contract which is reflective of the
45
Arbitration Award approved by the Commission, the affected provision
shall be invalidated, modified, or stayed, consistent with the action of the
legislative body, court, or regulatory agency. In such event, the Parties
shall expend diligent efforts to arrive at an agreement respecting the
modifications to the Agreement. If negotiations fail, disputes between the
Parties concerning the interpretation of the actions required or provisions
affected by such governmental actions shall be resolved pursuant to the dispute
resolution process provided for in this Agreement. The invalidation, stay, or
modification of the pricing provisions of the FCC's First Report and Order in
CC Docket No. 96-98 (August 8, 1996) and the FCC's Order on Reconsideration
(September 27, 1996) shall not be considered an invalidation, stay, or
modification requiring changes to provisions of the Agreement required by the
Commission Arbitration Award, in that the FCC's pricing provisions are not the
basis for the costing and pricing provisions of the Commission's Arbitration
Award.
31.19 NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY. This Agreement
is for the sole benefit of the Parties and their permitted assigns, and nothing
herein express or implied shall create or be construed to create any
third-party beneficiary rights hereunder. Except for provisions herein
expressly authorizing a Party to act for another, nothing in this Agreement
shall constitute a Party as a legal representative or agent of the other Party,
nor shall a Party have the right or authority to assume, create or incur any
liability or any obligation of any kind, express or implied, against or in the
name or on behalf of the other Party unless otherwise expressly permitted by
such other Party. Except as otherwise expressly provided in this Agreement, no
Party undertakes to perform any obligation of the other Party, whether
regulatory or contractual, or to assume any responsibility for the management
of the other Party's business.
31.20 NO LICENSE. No license under patents, copyrights or any other
intellectual property right (other than the limited license to use consistent
with the terms, conditions and restrictions of this Agreement) is granted by
either Party or shall be implied or arise by estoppel with respect to any
transactions contemplated under this Agreement.
31.21 SURVIVAL. The Parties' obligations under this Agreement which by
their nature are intended to continue beyond the termination or expiration of
this Agreement shall survive the termination or expiration of this Agreement.
31.23 SCOPE OF AGREEMENT. This Agreement is intended to describe and
enable specific Interconnection and compensation arrangements between the
Parties. This Agreement does not obligate either Party to provide arrangements
not specifically provided herein.
31.24 ENTIRE AGREEMENT. The terms contained in this Agreement and any
Schedules, Exhibits, Appendices, tariffs and other documents or instruments
referred to herein, which are incorporated into this Agreement by this
reference, constitute the entire agreement between the Parties with respect to
the subject matter hereof, superseding all prior understandings, proposals and
other communications, oral or written. Neither Party shall be bound by any
preprinted terms additional to or different from those in this Agreement that
may appear subsequently in the other Party's form documents, purchase orders,
quotations, acknowledgments, invoices or other
46
communications. This Agreement may only be modified by a writing signed by an
officer of each Party.
47
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of this 21 day of August , 1997 .
Digital Teleport, Inc. Southwestern Xxxx Telephone Company
Signature:/s/ X.X. Xxxxxx Signature:/s/ Xxxxx X. Xxxxxx
---------------------------------------- -------------------------------------------------
Name: X. X. XXXXXX Name: Xxxxx X. Xxxxxx
------------------------- -----------------------------
(Print or Type) (Print or Type)
Title: Vice President IC Support Title: General Manager - Competitive
------------------------- -----------------------------
(Print or Type) Provider Account Team
-----------------------------
(Print or Type)
48
APPENDIX 800
ACCESS TO THE TOLL FREE CALLING DATABASE
This Appendix sets forth the terms and conditions under which SWBT provides
Access to the Toll Free Calling Database.
I. DESCRIPTION
A. SWBT's 800 database, an ANSI SS7 call-related database
system, receives updates processed from the national Service
Management System (SMS). Customer records in the SMS are created or
modified by entities known as Responsible Organizations (RespOrg)
who obtain access to the SMS via the 800 Service Management System,
Tariff F.C.C. No. 1. 800 Service Providers must either become
their own RespOrg or use the services of an established RespOrg.
The services of a RespOrg includes creating and updating 800 records
in the SMS to download in the 800 database(s). SWBT does not,
either through a tariff or contract, provide RespOrg service.
B. After the 800 customer record is created in the SMS, the SMS
downloads the records to the appropriate databases, depending on the
area of service chosen by the 800 subscriber. An 800 customer
record is created in the SMS for each 800 number to be activated.
The SMS initiates all routing changes to update information on a
nationwide basis.
C. Access to the Toll Free Calling Database allows an LSP to
access SWBT's 800 database for the purpose of switch query and
database response. Access to the Toll Free Calling Database
supports the processing of toll free calls (e.g., 800 and 888) where
identification of the appropriate carrier (800 Service Provider) to
transport the call is dependent upon the full ten digits of the toll
free number (e.g., 1+800+NXX+XXXX). Access to the Toll Free Calling
Database includes all 800-type dialing plans (i.e., 800 and 888 [and
877, 866, 855, 844, 833, 822, when available]).
D. Access to the Toll Free Calling Database provides the carrier
identification function required to determine the appropriate
routing of an 800 number based on the geographic origination of the
call, from a specific or any combination of NPA/NXX, NPA or LATA.
E. There are three optional features available with 800 service:
Designated 10-Digit Translation, Call Validation and Call Handling
and Destination.
1. The Designated 10-Digit Translation feature
converts the 800 number into a designated 10-digit number. If
the 800 Service Provider provides the designated 10-digit
number associated with the 800 number and requests delivery of
the designated 10-digit number
49
in place of the 800 number, SWBT will deliver the designated
10-digit number.
2. The Call Validation feature limits calls to an 800 number to
calls originating only from an 800 Subscriber's customized
service area. Calls originating outside the area will be
screened and an out of band recording will be returned to the
calling party.
3. The Call Handling and Destination feature allows routing of 800
calls based on one or any combination of the following: time of
day, day of week, percent allocation and specific 10 digit ANI.
II. TERMS AND CONDITIONS
A. Access to the Toll Free Calling Database provided under these
terms and conditions is only available for use in the provision of
telephone exchange and exchange access telecommunications services
as specified in the Telecommunications Act of 1996 and any effective
rules and regulations of the Federal Communications Commission and
the state Public Service Commission.
B. Access to the Toll Free Calling Database is offered separate
and apart from other unbundled network elements necessary for
operation of the network routing function addressed in these terms
and conditions, e.g., end office 800 SSP functionality and CCS/SS7
signaling. This appendix is separate from the prices, terms,
conditions and billing for such related elements, and in no way
shall this appendix be construed to circumvent the prices, terms,
conditions or billing as specified for such related elements.
C. LSP shall address its queries to SWBT's database to the alias
point code of the STP pair identified by SWBT. LSP's queries shall
use subsystem number 0 in the calling party address field and a
translations type of 254 with a routing indicator set to route on
global title. LSP acknowledges that such subsystem number and
translation type values are necessary for SWBT to properly process
queries to its 800 database.
D. Each Party warrants to the other that it shall send queries
and SS7 messages conforming to the ANSI approved standards for SS7
protocol and pursuant to the Specifications and Standards documents
attached and incorporated herein in Exhibit I. Both Parties
acknowledge that transmission in said protocol is necessary for each
Party to provision Access to the Toll Free Calling Database (or the
equivalent thereof). Each Party reserves the right to modify its
network pursuant to other specifications and standards, which may
include Bellcore Specifications defining specific service
applications, message types and formats, that may become necessary
to meet the prevailing demands within the U.S. telecommunications
industry. All such changes shall be announced in
50
accordance with the then prevailing industry standard procedures.
Each party shall work cooperatively to coordinate any necessary
changes.
E. LSP acknowledges and agrees that CCS/SS7 network overload due to
extraordinary volumes of queries and/or other SS7 network messages
can and will have a detrimental effect on the performance of SWBT's
CCS/SS7 network and its 800 database. LSP further agrees that SWBT,
at its sole discretion, may employ certain automatic and/or manual
overload controls within SWBT's CCS/SS7 network to guard against
these detrimental effects. SWBT shall report to the LSP any
instances where overload controls are invoked due to the LSP's
CCS/SS7 network. LSP shall take immediate, corrective actions as are
necessary to cure the conditions causing the overload situation.
F. During periods of 800 database system congestion, SWBT shall utilize
an automatic code gapping procedure to control congestion that may
affect the service of all customers of SWBT's 800 database. The
automatic code gapping procedure used by SWBT shall tell LSP's switch
the gap (how long LSP's switch should wait before sending another
query) and the duration (how long the switch should continue to
perform gapping). For example, during an overload condition, the
automatic code gapping procedure shall tell SWBT's 800 database when
to begin to drop one out of three queries received. This code
gapping procedure shall be applied uniformly to all users of SWBT's
800 database. SWBT reserves the right to manually invoke the
automatic code gapping procedure to control congestion.
G. Prior to SWBT initiating service under this Appendix, LSP shall
provide an initial forecast of busy hour query volumes. LSP shall
update its busy hour forecast for each upcoming calendar year
(January - December) by October 1 of the preceding year. LSP shall
provide such updates each year for the first three (3) years of this
Appendix. If, prior to the establishment of a mutually agreeable
service effective date, in writing, SWB, at its discretion,
determines that it lacks adequate processing capability to provide
Access to the Toll Free Calling Database to LSP, SWBT shall notify
LSP of SWBT's intent not to provide the services under this Appendix
and this Appendix will be void and have no further effect.
H. LSP shall from time to time at SWBT's request, provide additional
forecasted information as deemed necessary by SWBT for network
planning in connection with this offering.
I. SWBT shall test the Access to the Toll Free Calling Database in
conjunction with CCS/SS7 Interconnection Service (e.g., SS7 Appendix)
as outlined in Bellcore Technical References TR-NWT-000533,
TR-NWT-000954, TR-TSV-000905, and TP 76638.
51
J. LSP shall only use Access to the Toll Free Calling Database to
determine the routing requirements for originating 800 calls. Neither
the LSP nor carrier customers of the LSP if the LSP is acting on
behalf of other carriers, shall use the database information to copy,
store, maintain or create any table or database of any kind or for
any purpose. If the LSP acts on behalf of other carriers to access
SWBT's Toll Free Calling Database, LSP shall prohibit such carriers
from copying, storing, maintaining, or creating any table or database
of any kind from any response provided by SWBT after a query to
SWBT's Toll Free Calling Database. LSP shall only use this network
element in connection with the provision of telephone exchange and
exchange access services.
K. LSP shall ensure that it has sufficient link capacity and related
facilities to handle its signaling and toll free traffic without
adversely affecting other network subscribers.
L. SWBT shall provide Access to the Toll Free Calling Database as set
forth in this Appendix only as such elements are used for LSP's
activities on behalf of its Oklahoma local service customers where
SWBT is the incumbent local exchange carrier. LSP agrees that any
other use of SWBT's Toll Free Calling Database for the provision of
800 database service by LSP will be pursuant to the terms,
conditions, rates, and charges of SWBT's effective tariffs, as
revised, for 800 database services.
M. This Appendix shall become effective on_________ and shall continue
for one (1) year from the effective date of implementation of Access
to the Toll Free Calling Database. Thereafter, this Appendix shall
remain in effect unless terminated by either party upon written
notice given sixty (60) days in advance of the termination date.
N. Ordering and billing inquiries for the elements described herein
shall be directed to the Local Service Provider Service Center
(LSPSC). Ordering shall be done through the LSPSC using the standard
LSP order form and SWBT CCS7-2 Form, if applicable.
III. RATE REGULATIONS
A. LSP shall pay a Local Service Order Request Charge for each LSP
request for service order activity to establish Access to the Toll
Free Calling Database.
B. LSP shall pay the rates for Access to the Toll Free Calling Database,
as described in Section III D. These rates and charges will apply
for one (1) year from the service effective date for each exchange.
After one (1) year, SWBT may change the rates upon sixty (60) days'
notice. SWBT may first give such notice sixty days before the end of
the first year.
52
C. LSP shall pay a nonrecurring charge when an LSP establishes
or changes a signaling point code. The rates and charges for
Signaling Point Code(s) are described in the SS7 Appendix. This
charge also applies to point code information provided by LSPs
allowing other telecommunications providers to use the LSP's SS7
signaling network.
D. Prices for the four rate elements associated with Access to
the Toll Free Calling Database are as follows:
1. Toll Free Database Query Rate Element $0.000712
2. Designated 10-Digit Translation Rate Element NC
3. Call Validation Rate Element NC
4. Call Handling and Destination Rate Element $0.000119
E. LSP shall pay the Toll Free Database query rate for each
query received and processed by SWB's database. When applicable,
the charge for the additional features (Designated 10-Digit
Translation, Call Validation and Call Handling and Destination) are
per query and in addition to the Toll Free Database query charge,
and will also be paid by LSP.
IV. MONTHLY BILLING
SWBT shall render monthly billing statements to the LSP, and remittance
in full will be due within thirty (30) days of receipt.
53
APPENDIX 800
EXHIBIT I
SPECIFICATIONS AND STANDARDS
Description of Subject Area
--------------------------- Document Number
and Issuing Organization
------------------------
Bellcore, SS7 Specifications TR-NWT-000246
TR-NWT-000271
TR-NWT-000533
Bellcore, CCS Network Interface Specifications TR-TSV-000905
TP 76638
TR-NWT-000954
54
APPENDIX 911 - OKLAHOMA
Terms and Conditions for Providing Connection
to E911 Universal Emergency Number Service
This appendix between SWBT and LSP sets forth the terms and conditions upon
which SWBT will provide LSP's connection to E911 Universal Emergency Number
Service.
DEFINITIONS
The following definition is in addition to those in the Oklahoma General
Exchange Tariffs referenced below:
Independent Exchange Company (IEC): A local exchange telephone
company, including Local Service Providers (LSPs) who are
certified by the state commission, other than Southwestern Xxxx
Telephone Company. An IEC may also be a customer for Universal
Emergency Number Service in order to provide that service or
elements of that service to legally authorized agencies within the
IEC's serving area.
TERMS AND CONDITIONS
The following is in addition to those terms and conditions in the Oklahoma
General Exchange Tariffs referenced below:
The Universal Emergency Number Service may be provided by
Southwestern Xxxx Telephone Company or jointly by Southwestern
Xxxx Telephone Company and an IEC.
SWBT shall provide LSP with a file containing the Master Street
Address Guide (MSAG) for the exchanges or communities specified in
Exhibit I, in accordance with the methods and procedures described
in the document "Operating Methods for Downloading and Maintaining
End User Records in SWBT's DBMS". SWBT shall provide LSP
additional files with the entire MSAG, including subsequent
additions or updates to the MSAG in accordance with the intervals
specified in Exhibit I. In addition, SWBT shall provide LSP with
a statistical report in a timely fashion and in accordance with
the methods and procedures described in the above mentioned
document, for each file downloaded by LSP to SWBT's DBMS, so that
LSP may ensure the accuracy of the end user records. LSP will
attest it has been provided a copy of the document referenced
above.
55
At a reasonable time prior to the establishment of E911 Service,
LSP shall download and maintain thereafter all information
required to establish records necessary for furnishing connection
to E911 Service and shall promptly notify SWBT in writing of any
changes to be made to such records. LSP shall adopt and comply
with operating methods applicable to downloading and maintaining
LSP's end user records in SWBT's DBMS, as set forth in the
document referenced in the paragraph above.
LSP acknowledges that its end users in a single local calling
scope may be served by different PSAPs, and LSP shall be
responsible for providing facilities to route calls from its end
users to the proper E911 Control Office(s).
LSP shall connect its switches to the E911 Control Office by
one-way outgoing CAMA trunks dedicated for originating 911
emergency service calls.
The parties agree that the E911 service is provided for the use of
the E911 Customer, and recognizes the authority of the E911
Customer to establish service specifications and grant final
approval (or denial) of service configurations offered by SWBT and
the LSP. The terms and conditions of this appendix represent a
plan for providing E911 service, for which LSP must obtain
documentation of approval from the appropriate E911 Customer(s)
which have jurisdiction in the area(s) in which LSP's customers
are located. LSP shall provide such documentation to SWBT prior
to the use of LSP's E911 connection for actual emergency calls.
Both parties agree to designate a representative who shall have
the authority to execute additional exhibits to this Appendix when
necessary to accommodate expansion of the geographic area of LSP
into the jurisdiction of additional PSAPs or to increase the
number of CAMA trunks. The designated representative for SWBT is
Xxxx Xxxxxx and for LSP is Xxxxxxx Xxxxxxxxx.
The terms and conditions of this appendix are subject to
renegotiation in the event that the E911 Customer orders changes
to the E911 service that necessitate revision of this appendix.
RATES, TERMS AND CONDITIONS
E911 Universal Emergency Number Service will be provided utilizing the rates,
terms and conditions set forth in the following Oklahoma tariff, in addition to
those terms and conditions described previously in this Appendix:
SWBT's General Exchange Tariff Section 36 - 911 Emergency Number Service
56
EXHIBIT I to APPENDIX 9-1-1
LSP SERVING AREA DESCRIPTION AND E9-1-1 INTERCONNECTION DETAILS
LSP NAME LSP "OCN" LSP Switch Switch Type LSP NPA/NXX(s)
& CONTACTS Name & Addr. included
CLLI Code #9-1-1 Trunks
Requested
E9-1-1 LSP Telco ID
Manager
"Connect Signal" "Default" PSAP
Digits(4)
1 - 1
Database Estimated # of ETST Code
Administrator EAAs
LSP Service Area Definition:
Switch Site Contact
SWBT E9-1-1 SYSTEM CONFIGURATION ASSOCIATED WITH DESIGNATED
E9-1-1 CONTROL OFFICE
E9-1-1 CONTROL PSAPs INCLUDED IN COMMUNITY E9-1-1
OFFICE: CUSTOMER and
CLLI Code: 9-1-1 SERVICE PLAN for MSAG PULL(3) AGENCY TYPE
(see legend
below)
E9-1-1 Features
Required:
# of 9-1-1
Trunks from
LSP:
MSAG Update
Interval: Monthly
FOOTNOTES: (1)
(2)
(3) MSAG will only include addresses within SWBT exchanges,
unless specifically stated otherwise.
(4) Refer to network interface specifications in Exhibit III.
"TYPE of AGENCY" LEGEND:
HRC = Home Rule City
ECD = Emergency Communications District
COG = Council of Governments or Regional Planning
Commission
GLC = General Law City
Cnty = County with special provisions (only applies
to Dallas County)
Date Prepared
57
APPENDIX AIN
AIN CALL RELATED DATABASE
AIN is a Network Architecture that uses distributed intelligence in centralized
databases to control call processing and manage network information, rather
than performing those functions at every switch.
SWBT will provide LSP access to the SWBT's Service Creation Environment (SCE)
to design, create, test and deploy AIN-based features, equivalent to the access
it provides to itself, providing that security arrangements can be made. LSP
requests to use the SWBT SCE will be subject to request and review procedures
to be agreed upon by the Parties.
When LSP utilizes SWBT's Local Switching network element and requests SWBT to
provision such network element with a technically feasible AIN trigger, SWBT
will provide access to the appropriate AIN Call Related Database for the
purpose of invoking either an SWBT AIN feature or a LSP developed AIN feature
as per previous section.
When LSP utilizes its own local switch, SWBT will provide access to the
appropriate AIN Call Related Database for the purpose of invoking either an
SWBT AIN feature or a LSP developed AIN feature as per previous section.
SWBT will provide access to AIN Call Related databases in a nondiscriminatory
and competitively neutral manner. Any mediation, static or dynamic, will only
provide network reliability, protection, security and network management
functions consistent with the access service provided. Any network management
controls found necessary to protect the AIN SCP from an overload condition will
be applied based on nondiscriminatory guidelines and procedures either (1)
resident in the SWBT STP that serves the appropriate AIN SCP or (2) via manual
controls that are initiated from SWBT Network Elements. Such management
controls will be applied to the specific problem source, where ever that source
is, including SWBT, and not to all services unless a problem source cannot be
identified.
As requested by LSP, SWBT will provide specifications and information
reasonably necessary for LSP to utilize SWBT SCE as provided above.
SWBT SCP will partition and take reasonable steps to protect LSP service logic
and data from unauthorized access, execution or other types of compromise,
where technically feasible.
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APPENDIX BCR
BILLING, COLLECTING AND REMITTING
This Appendix sets forth the terms and conditions that apply to those
telecommunications services for which charges are billed and collected by one
Local Exchange Carrier (LEC) or LSP but earned by another LEC; and to establish
procedures for the billing, collecting and remitting of such charges and for
compensation for the services performed in connection with the billing,
collecting and remitting of such charges.
I. DEFINITIONS
A. BellCore Client Company Calling Card and Third Number
Settlement (BCC CATS) System - Nationwide system used to produce
information reports that are used in the settlement of LEC revenues
recorded by one BCC (or LEC) and billed to an end user of another
BCC (or LEC) as described in accordance with the BellCore Practice
BR 000-000-000.
B. Charges - the amount approved or allowed by the appropriate
regulatory authority to be billed to an end user for any of the
services described in Section II., rendered by a LEC to an end user.
C. Compensation - the amount to be paid by one Party to the
other Party for billing, collecting and remitting of charges as set
forth in Section IV.
D. IntraLATA - within a Local Access Transport Area (LATA) -
IntraLATA messages are those messages, either intrastate or
interstate, which originate and terminate within a LATA. The term
"IntraLATA messages," as used herein, shall only include those that
qualify for the BellCore Client Company BCC CATS process.
E. InterLATA - between Local Access and Transport Areas (LATAs)
as defined in the FCC's CC Docket No. 78-72. InterLATA messages
are those messages which originate in one LATA and terminate in a
different LATA. The term "InterLATA messages" as used herein, shall
only include those that qualify for the BellCore Client Company BCC
CATS process.
F. Local Exchange Carrier (LEC) - as used in this Appendix shall
mean those Local Exchange Carriers or Local Service Providers using
BCC CATS as a message tracking system.
G. Local Message - Local messages . are those messages which
originate and terminate within the area defined as the local service
area of the station from which the message originates.
H. Revenues - the sum of all or part of the charges as defined
above.
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II. SCOPE OF APPENDIX
This Appendix shall apply to procedures for the billing, collecting and
remitting of revenues (and compensation to either Party for billing,
collecting and remitting of such revenues) derived from the following
services:
A. LEC-carried (traffic transported by facilities belonging to a LEC)
local messages of the following types:
1. Local Message Service Charges Billed to a Calling Card or to a
Third Number.
2. Directory Assistance Calls Charged to a Calling Card or to a
Third Number.
3. Public Land Mobile Radiotelephone Transient-Unit Local Message
Service (Mobile Channel Usage Link Charge).
4. Maritime Mobile Radiotelephone Service and Aviation
Radiotelephone Service (Marine, Aircraft, High Speed Train Radio
Link Charges).
B. LEC-carried Interstate IntraLATA and Interstate InterLATA
telecommunications services that qualify for and flow through the
BCC CATS process as addressed in the BellCore Practice BR
000-000-000, of the following types:
1. Interstate IntraLATA Toll Service carried by an LEC and charged
to a Calling Card or a Third Number.
2. Interstate InterLATA Toll Service carried by an LEC and charged
to a Calling Card or a Third Number.
3. Radio Link Charges where service is provided by one LEC and
billed by another LEC.
III. RESPONSIBILITIES OF THE PARTIES
A. LSP agrees to xxxx, collect and remit to SWBT the charges for
the services described in Section II. which charges are earned
by any LEC (including SWBT), but which are to be billed to end
users of the LSP.
B. In those cases in which the charges for the services listed in
Section II. are due any LEC other than SWBT, SWBT will arrange
to transfer these and charges to the appropriate company in
accordance with accepted industry standards.
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C. Charges for the services listed in Section II. to be billed,
collected and by LSP for SWBT's benefit, shall be remitted by
LSP to SWBT within 30 days of the date of SWBT's xxxx to LSP for
such services.
D. SWBT agrees to xxxx and collect (or to have another LEC xxxx and
collect, where the appropriate), and to remit to LSP, the
charges for the services described in Section II., which charges
are earned by LSP, but which are to be billed by another LEC
(including SWBT) to the end users of that LEC.
E. Charges for the services listed in Section II. to be billed,
collected and remitted by SWBT or another LEC for LSP's benefit,
shall be remitted by SWBT to LSP within 30 days of the date of
LSP's xxxx to SWBT for such services.
F. The full amount of the charges transmitted to either Party for
billing, collecting and remitting shall be remitted by the other
Party, without setoff, abatement or reduction for any purpose,
other than to deduct the compensation, as described in Section
IV, due the Party for performing the end user billing function.
The Party billing the end user shall be responsible for all
uncollectible amounts related to the services described remitted
in Section II. Notwithstanding this paragraph, SWBT may net
amounts due to LSP under this Appendix against amounts owed to
SWBT when SWBT renders a xxxx to LSP hereunder.
G. Each Party will furnish to the other such information as may be
required for monthly billing and remitting purposes.
IV. COMPENSATION
A Party performing the services described in Section II.A. will compensate
the other Party in the amount of $.08 for each charge billed for any
service described in Section II.A. and subsequently remitted pursuant to
this Appendix by such other Party to the Party performing the services
described in Section II.A. A Party performing the services described in
Section II.B. will compensate the other Party in the amount of $.05 for
each charge billed for any service described in Section II.B. and
subsequently remitted pursuant to this Appendix by such other Party to the
Party performing the services described in Section II.B. Such compensation
shall be paid (unless a Party has collected such compensation as described
in Section III.F. above) within 30 days of the date of a xxxx for such
compensation by the Party performing (or which has another LEC perform for
it), the billing, collecting and remitting functions described in Section
III.
V. SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR
INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED HEREUNDER.
ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH REGARD TO THE CORRECTNESS
OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY A THIRD
PARTY.
00
XXXXXXXX XXXXXXXXXXXXX (XX)
WHEREAS, SWBT operates a Clearinghouse (CH), as described below, for its own
behalf and that of participating LECs and LSPs, including LSP; and
WHEREAS, LSP wants to participate in the CH on the terms set forth herein;
The Parties agree to the following:
1. CLEARINGHOUSE DESCRIPTION
SWBT operates a CH for the purpose of facilitating the exchange of certain
alternatively billed intrastate intraLATA message toll call records and the
reporting of settlement revenues owed by and among participating LECs and
LSPs, including SWBT and LSP.
2. QUALIFYING MESSAGE CRITERIA
The only toll call messages that qualify for submission to SWBT for CH
processing are: (a) intrastate intraLATA sent collect (including calling
card, collect and third number) messages which are originated in one LEC or
LSP exchange, exclusively carried by a LEC or LSP over LEC or LSP
facilities and billed to a customer located in a second LEC's or LSP
exchange within the same state; or (b) intrastate intraLATA sent collect
(but limited to calling card and third number) messages originated in one
of SWBT's operating areas (located in parts of Texas, Arkansas, Kansas,
Missouri or Oklahoma), exclusively carried by a LEC or LSP over LEC or LSP
facilities, and billed to a customer located in a second LEC's or LSP
exchange and not in the originating State.
3. RESPONSIBILITIES OF THE PARTIES
A. LSP agrees that it will provide SWBT with billing records for CH
processing that are in an industry standard format acceptable to SWBT and
at a minimum will display the telephone number of the end user to whom the
call is to be billed, and data about the call sufficient for a carrier to
comply with all applicable state regulatory requirements. For purposes of
this Attachment, these records ("CH Records") will detail intraLATA toll
calls which were originated by use of the single digit access code (i.e.,
O+ and 0-) in one LEC or LSP exchange but are to be billed to an end user
in a second LEC's or LSP exchange. Such records are referred to as
category 92 records for CH processing purposes. The term "CH Record" will
mean the call detail attributed to a single completed toll message.
LSP agrees that all CH Records it generates will display indicators
denoting whether category 92 Records should be forwarded to SWBT's CH. LSP
will retain its originating
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records for ninety (90) days such that the category 92 Records can be
retransmitted to SWBT for CH processing, if needed.
B. SWBT will provide and maintain such systems as it believes are required
to furnish the CH service described herein. SWBT, in its capacity as
operator of the CH, agrees to retain all CH Records processed through the
CH for two (2) years.
C. LSP will timely furnish to SWBT all CH Records required by SWBT to
provide the CH service in accordance with the Technical Exhibit Settlement
Procedures (TESP) dated DD/MM/YEAR, or as otherwise mutually agreed upon
by the Parties. SWBT will provide the CH service in accordance with the
TESP, and such modifications as are subsequently agreed upon.
D. Presently, in operating the CH, SWBT relies upon NXX codes to identify
messages for transmission to participating billing companies. To the
extent any subprocesses are required to settle CH messages due to the use
of ported numbers, such subprocessing will be the responsibility of the
porting entity.
4. PROCESSING CHARGE
LSP agrees to pay SWBT a processing charge in consideration of SWBT's
performance of CH services. This charge is $.02 per originated CH Record
processed on behalf of LSP.
5. BILLING CHARGE
LSP agrees to pay a $.05 per message charge to the LEC or LSP responsible
for billing the message, including SWBT, when SWBT bills the message.
6. SETTLEMENT REPORT
SWBT will issue monthly reports containing the results of the processing of
CH Records to each participating LEC and LSP. These reports list the (a)
amounts owed by LSP for billing messages originated by others; (b) amounts
due to LSP for LSP-originated messages billed by others; (c) applicable
billing charges; and (d) processing charges.
7. RETROACTIVE AND LOST MESSAGES
The Parties agree that processing of retroactive messages through the CH is
acceptable, if such messages utilize the industry standard format for call
records, pursuant to Section 3 of this Attachment. The Parties agree that
lost messages are the complete responsibility of the originating LEC or
LSP. If messages are lost by any Party, and cannot be recreated
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or retransmitted, the originating LEC or LSP will estimate messages,
minutes, and associated revenues based on the best available data. No
estimate will be made for messages which are more than two years old at the
time the estimate is made. The estimates will be off-line calculations
(i.e., not part of the routine CH processing) and will be included as a
supplement to the monthly settlement report.
8. LIMITATION OF LIABILITY
By agreeing to operate the CH, SWBT assumes no liability for any LEC's or
LSP's receipt of appropriate revenues due to it from any other entity. LSP
agrees that SWBT will not be liable to it for damages (including, but not
limited to, lost profits and exemplary damages) which may be owed to it as
a result of any inaccurate or insufficient information resulting from any
entity's actions, omissions, mistakes, or negligence and upon which SWBT
may have relied in preparing settlement reports or performing any other act
under this Attachment.
LSP agrees to indemnify and hold SWBT harmless against and with respect to
any and all third party claims, demands, liabilities or court actions
arising from any of its actions, omissions, mistakes or negligence
occurring during the course of SWBT's performance of CH processing pursuant
to this Attachment.
SWBT will not be liable for any losses or damages arising out of errors,
interruptions, defects, failures, or malfunction of the CH services
provided pursuant to this Attachment, including those arising from
associated equipment and data processing systems, except such losses or
damages caused by the sole negligence of SWBT. Any losses or damage for
which SWBT is held liable under this Attachment will in no event exceed the
amount of processing charges incurred by LSP for the CH services provided
hereunder during the period beginning at the time SWBT receives notice of
the error, interruption, defect, failure or malfunction, to the time
service is restored.
9. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR
INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES PROVIDED HEREUNDER.
ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH REGARD TO THE CORRECTNESS
OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS ACCESSED AND USED BY A THIRD
PARTY.
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APPENDIX CNAM
This appendix contains the terms and conditions under which SWBT and LSP shall
provide CNAM Service Query service (or equivalent service):
1. Definitions
A. A-links mean a diverse pair of facilities connecting local end office
switching centers with Signaling Transfer Points.
B. Calling Name Delivery (CNAM) service enables the terminating end user
to identify the calling party by a displayed name before the call is answered.
The calling party's name, date and time of the call are retrieved from an SCP
database and delivered to the end user's premise between the first and second
ring for display on compatible customer premise equipment (CPE).
C. CNAM Service Query is SWBT's service that allows LSP to query SWBT's
Calling Name database for Calling Name information in order to deliver that
information to LSP's local subscribers.
D. Calling Name database means a Party's database containing current
Calling Name information of all working lines served or administered by that
Party, including the Calling Name information of any telecommunications company
participating in that Party's Calling Name database.
E. Calling Name information means telecommunications companies' records of
all their subscribers' names associated with one or more assigned ten-digit
telephone numbers.
F. Service Control Point (SCP) is a CCS network node where the Calling
Name database resides.
G. Service Point (SP) means a CCS network interface element capable of
initiating and/or terminating SS7 messages from an end office.
H. Service Switching Point (SSP) means the software capability within a
switching point that provides the SP with SS7 message
preparation/interpretation capability plus SS7 transmission/reception access
ability.
I. Signaling Transfer Point (STP) is the point where a Party interconnects
with a CCS/SS7 network. In order to connect to SWBT's SS7 network, LSP or a
third party initiating LSP's Calling Name Queries must connect with an SWBT STP
in order to connect to SWBT's SCP.
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J. Common Channel Signaling (CCS) Network is an out-of-band,
packet-switched, signaling network used to transport supervision signals,
control signals, and data messages. CNAM Queries and Response messages are
transported across the CCS network.
K. Signaling System 7 (SS7) is the signaling protocol used by the CCS
network.
L. CNAM Service Query Rate applies to each CNAM Query received at the SCP
where a Party's Calling Name database resides.
M. Query Transport Rate applies to each CNAM Query transported through a
Party's interconnecting STP and between the STP and the Calling Name database.
SWBT and LSP shall list their STP locations in the National Exchange Carrier
Association, Inc. Tariff FCC No. 4.
N. Query means a message in American National Standards Institute's (ANSI)
standard SS7 signaling protocol which represents a request to a Calling Name
database for Calling Name information.
O. Response means an SS7 message which when appropriately interpreted
represents an answer to a Query.
P. Name Record Administering Companies means telecommunications companies
that administer telephone number assignments to the public and which make their
Calling Name information available in a Party's Calling Name database.
2. Description of Service
A. SWBT shall provide LSP Calling Name information whenever LSP initiates
a Query from an SSP for such information associated with a call terminating to
a CNAM subscriber.
B. All Queries to SWBT's Calling Name database shall use a translation
type of 005 and a subsystem number in the calling party field mutually agreed
upon by the Parties. LSP acknowledges that such subsystem number and
translation type values are necessary for SWBT to properly process Queries to
its Calling Name database.
C. LSP warrants to SWBT that it shall send Queries conforming to the ANSI
approved standards for SS7 protocol and pursuant to the specification standards
documents identified in Exhibit A. Both Parties acknowledge that transmission
in said protocol is necessary for each party to provision CNAM Service Query.
(Or the equivalent thereof). Both Parties warrant that they shall send SS7
Messages that
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comply with ANSI approved standards for SS7 protocol and pursuant to the
specification standards documents identified in Exhibit A. Each party reserves
the right to modify its network pursuant to other specifications standards,
which may include Bellcore specifications defining specific service
applications, message types and formats, that may become necessary to meet the
prevailing demands within the U.S. telecommunications industry. All such
changes shall be announced a minimum of 180 days in advance of implementation
through industry standard procedures. Each party will work cooperatively to
coordinate any necessary changes.
D. LSP acknowledges and agrees that CCS/SS7 network overload due to
extraordinary volumes of Queries and/or other SS7 network messages can and will
have a detrimental effect on the performance of SWBT's CCS/SS7 network. LSP
further agrees that SWBT, in its sole discretion, shall employ certain
automatic and/or manual overload controls within its CCS/SS7 network to guard
against these detrimental effects. SWBT shall report to LSP any instances
where overload controls are invoked due to LSP's CCS/SS7 network and LSP agrees
in such cases to take immediate corrective actions as are necessary to cure the
conditions causing the overload situation.
E. Prior to initiating service under this Agreement, LSP shall provide to
SWBT an initial forecast of busy hour Query volumes. If, prior to the
establishment of a mutually agreeable service effective date, in writing, SWBT,
at its discretion, determines that it lacks adequate storage or processing
capability to provide CNAM Service Query to LSP, SWBT shall notify LSP of its
intent not to provide the services under this Appendix and this Appendix will
be void and have no further effect.
F. Upon request, LSP shall update its busy hour forecast for each upcoming
calendar year (January - December) by October 1 of the preceding year. LSP
shall provide such updates each year for the first three (3) years of this
Agreement.
G. SWBT provides CNAM Service Query as set forth in this Appendix only as
such service is used for LSP's activities as a local service provider in SWBT's
traditional serving areas in the states of Arkansas, Kansas, Missouri, Oklahoma,
and Texas. SWBT provides CNAM Service Query for interexchange carriers,
operator service providers, and other telecommunications companies under
separate contract rates. LSP agrees that any use of SWBT's LIDB for the
provision of CNAM Service Query by LSP, including, but not limited to, when LSP
acts as an LSP outside of SWBT's traditional serving areas in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas, and/or acts as an operator
service provider to other LSPs, local exchange companies, or any other
telecommunications company, and/or acts as an interexchange carrier, will be
pursuant to the standard terms, conditions, rates and charges of SWBT's non-LSP
contracts, as revised, for CNAM Service Query.
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3. Price and Payment
A. LSP shall pay a CNAM Service Query Rate of $0.0115 and a Query
Transport Rate of $0.0045 for each Query initiated into SWBT's Calling Name
database. Additional nonrecurring charges for point code activation of $14.25
and service order activity of $256.70 shall be applicable for all such activity
after the initial service order and initial point code activation. The per
CNAM Service Query rate SWBT charges hereunder may be increased upon sixty (60)
days written notice to the LSP unless LSP acts as an agent on behalf of other
carriers in which case ninety (90) days written notice shall be given. Upon
such notice, the Party receiving notice may terminate this Appendix without any
termination liability as provided in Section 5(B) of this Appendix. All
tariffed rates associated with Services provided hereunder are subject to
change pursuant to revisions of such tariffs.
B. SWBT shall record usage information for LSP's CNAM Queries terminating
to SWBT's Calling Name database. SWBT shall use its SCPs as the source of
usage data. SWBT shall aggregate usage by the point code of the
Query-originating SSP.
C. Based upon the data identified in Subsection 3.B above, SWBT shall xxxx
the LSP for its CNAM Queries on a monthly basis. The xxxx will be issued by
the fifteenth day of each month, and LSP shall pay the Subsection 3.B xxxx
within thirty (30) days of the xxxx issue date.
D. Depending on LSP's choice of method for transporting its Queries and
responses, LSP may be required to purchase certain other services, especially
services that may be provided pursuant to effective tariffs. In this event the
prices, terms, conditions and billing for such services will be specified in
the applicable tariff(s), and this Appendix shall not be construed to
circumvent the prices, terms, conditions, or billing as specified in the
applicable tariff(s).
E. If there is a dispute associated with a monthly xxxx, the disputing
Party shall notify the other in writing within ninety (90) calendar days of the
date of said monthly xxxx or the dispute shall be waived. Each party agrees
that any amount of any monthly xxxx that the Party disputes will be paid by
that Party according to the terms of Subsection 3.C above. Any adjustments
relating to a disputed amount shall be reflected on the next monthly xxxx
issued after resolution. Any credit issued upon resolution of any dispute
shall bear interest at the rate specified in Subsection 3.C. above, payable on
and as of the date the credit is issued. Parties shall work cooperatively and
use their best efforts to resolve any disputes as quickly as possible.
F. If LSP acts as a telecommunications company other than a local service
provider, or if LSP acts as a local service provider in areas outside of SWBT's
traditional service areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and
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Texas, LSP will designate those point codes from which it originates CNAM
Service Queries as an LSP acting as a local service provider within SWBT's
traditional service areas in the states of Arkansas, Kansas, Missouri, Oklahoma
and Texas from those point codes which originate CNAM Service Queries for all
other aspects of its business. If LSP uses the same OPC to originate Queries
for its operations as an LSP within SWBT's traditional service areas in the
states of Arkansas, Kansas, Missouri, Oklahoma, and Texas as it does for any
other aspect of its business, then LSP will provide SWBT with a percentage of
use factor that SWBT can use to apportion LSP's traffic between SWBT's terms
and conditions, rates and charges under this Appendix and the standard terms,
conditions, rates and charges under SWBT's non-LSP contracts. LSP will provide
this factor in a whole number between one (1) and one hundred (100) to indicate
the percentage of CNAM Service Queries LSP originates as an LSP acting as a
local service provider within SWBT's traditional service area in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas. A percentage of use factor of
1 (one) indicates that one percent of LSP's CNAM Service Queries originate as
an LSP acting as a local service provider within SWBT's traditional service
areas in the states of Arkansas, Kansas, Missouri, Oklahoma, and Texas. A
percentage of use factor of 100 indicates that one hundred percent of LSP's
traffic is from LSP acting as a local service provider within SWBT's
traditional service areas in the states of Arkansas, Kansas, Missouri,
Oklahoma, and Texas.
G. Such percentage of use factors will be provided by LSP on the LIDB
Access Service Order Form used to establish the service. All updates to this
factor will be provided via a letter. If LSP does not furnish a percentage of
usage factor, LSP agrees that SWBT will apply a percentage of use factor of one
percent (1%).
H. LSP agrees to update its percentage of use factors on a quarterly
basis. Effective on the first of January, April, July and October of each
year, LSP will forward to SWBT, to be received no later than fifteen (15)
business days after the first of each such month, a revised report showing the
percentage of use factors for the past three months ending the last day of
December, March, June, and September, respectively, for each OPC from which LSP
originates CNAM Service Query. Both parties agree that the revised report will
serve as the basis for the next three months billing. Both parties agree that
no prorating or backbilling will be done based on the report. SWBT will use
the revised report to apportion usage rate, monthly rates, and nonrecurring
charges until a revised report is received from LSP as set forth and agreed to
herein.
I. Both parties agree that SWBT may, upon written request by Certified
U.S. mail (return receipt requested), require LSP to provide call detail
records which will be audited to substantiate the projected percentage of use
factor provided by LSP. SWBT may request this detailed information annually.
If the audit results represent what SWBT considers to be a substantial
deviation from LSP's previously reported percentage of use for the period upon
which the audit is based, and that deviation is not due to seasonal changes or
other identifiable reasons, LSP agrees to allow SWBT to
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request such call detail records more than once annually. Both parties agree
that SWBT may make the call detail records available to an independent auditor
or to SWBT audit employees within thirty (30) days of the request at an agreed
upon location during normal business hours.
J. Both parties agree that if LSP fails to comply with SWBT's request for
auditable call detail records, SWBT may refuse additional applications for
service and/or refuse to complete any pending orders for service for a period
of thirty (30) days. If at the conclusion of thirty (30) days, LSP still does
not comply with this request, both parties agree that SWBT may apply an assumed
percentage of use factor of one percent (1%).
4. Ownership of the Calling Name Information
A. Telecommunications companies depositing information in a Party's
Calling Name database retain full and complete ownership and control over such
Calling Names information in that Calling Name database. The querying Party
obtains no ownership interest by virtue of this Appendix.
B. LSP shall not copy, store, maintain or create any table or database of
any kind after initiation of, and based upon a response to, a CNAM Query to
SWBT's calling name database.
C. If LSP acts on behalf of other carriers, LSP shall prohibit its
Query-originating carrier customers from copying, storing, maintaining, or
creating any table or database of any kind from any Response provided by SWBT
after a CNAM Query to a Calling Name database.
5. Term and Termination
A. This Appendix shall become effective pursuant to Section XXVII
(Effective Date) of the Agreement and shall continue for two (2) years from the
date of implementation of CNAM Service Query (or the equivalent thereof).
Thereafter, this Appendix shall remain in effect unless terminated by either
party upon written notice given sixty (60) days in advance of the termination
date.
B. Should LSP terminate this Appendix within the first six (6) months of
this effective date, LSP agrees to pay SWBT an early termination sum equal to
two (2) times the average monthly volume of LSP's CNAM Queries times the rate
specified in Section 3(A) of this Appendix. The average monthly volume will be
calculated using the previous two (2) months' volume divided by two (2) or, if
less than two months, the monthly volume of the first month service was
provided.
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C. If at any time during the term of this Appendix a tariff for CNAM
Service Query (or the equivalent service thereof) becomes effective, the tariff
and all terms and conditions, including all rates, will supersede this
Appendix. Under these circumstances, no termination liability as provided in
Section 5(B) of this Appendix will apply.
D. If a party materially fails to perform its obligation under this
appendix, the other party, after notifying the non-performing party of the
failure to perform and allowing that party thirty (30) days after receipt of
the notice to cure such failure, may cancel this appendix immediately upon
written notice.
E. Notwithstanding anything to the contrary in this Appendix, if legal or
regulatory decisions or rules compel SWBT or LSP to terminate the Appendix,
SWBT and LSP shall have no liability to the other in connection with such
termination.
6. Limitation of Liability
A. LSP's sole and exclusive remedies against SWBT for injury, loss or
damage caused by or arising from anything said, omitted or done in connection
with this Appendix regardless of the form of action, whether in contract or in
tort (including negligence or strict liability) shall be the amount of actual
direct damages and in no event shall exceed the amount paid for CNAM Service
Queries.
B. The remedies in Section 6(A) of this Appendix shall be exclusive of all
other remedies against a Party, its affiliate, subsidiaries or parent
corporation, (including their directors, officers, employees or agents).
C. In no event shall SWBT have any liability for system outages or
inaccessibility, or for losses arising from the unauthorized use of the data by
CNAM Service Query purchasers.
D. CALLING NAME INFORMATION PROVIDED TO AN LSP HEREUNDER SHALL BE PROVIDED
"AS IS." SWBT MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY OR
COMPLETENESS OF THE CALLING NAME INFORMATION REGARDLESS OF WHOSE CALLING NAME
INFORMATION IS PROVIDED. AND, SWBT SHALL NOT BE HELD LIABLE FOR ANY ACTIONS OR
OMISSIONS ARISING OUT OF OR IN CONJUNCTION WITH LSP'S USE OF THE CALLING NAME
INFORMATION. NOTWITHSTANDING THE FOREGOING, SWBT WARRANTS THAT LSP WILL BE
ACCESSING THE SAME CALLING NAME DATABASE FOR CUSTOMER'S CNAM QUERIES AS SWBT
ACCESSES FOR ITS OWN QUERIES.
E. SWBT is furnishing access to its Calling Name database in order to
facilitate the LSP's provision of Calling Name Delivery Service (CNDS) to its
end users
71
or to the end users of its Query-originating carrier customers, but not to
insure against the risk of completion of a call to a CNDS subscriber without the
display of the name of the caller. While each Party agrees to make every
reasonable attempt to provide accurate and current Calling Name information, the
Parties acknowledge that Calling Name information is the product of routine
business service order activity. LSP acknowledges that SWBT can furnish Calling
Name information only as accurate and current as the information has been
provided to SWBT for inclusion in its CNAM database. Therefore, SWBT, in
addition to the limitations of liability set forth, is not liable for
inaccuracies in the Calling Name information name records provided to LSP or to
its Query-originating carrier customers, except such inaccuracies caused by
SWBT's willful or wanton misconduct or gross negligence.
The Parties acknowledge that each Calling Name database limits the Calling
Name information length to fifteen (15) characters. As a result, the Calling
Name Information provided in a response to a Query may not reflect a
subscriber's full name. Name records of residential local telephone subscribers
will generally be stored in the form of last name followed by first name
(separated by a comma or space) to a maximum of fifteen (15) characters. Name
records of business local telephone subscribers will generally be stored in the
form of the first fifteen (15) characters of the listed business name that in
some cases may include abbreviations. The Parties also acknowledge that certain
local telephone service subscribers of Name Record Administering Companies may
require their name information to be restricted, altered, or rendered
unavailable. Therefore, in addition to the limitations of liability set forth
in Section 6 of this Appendix, SWBT is not liable for any and all liability,
claims, damages or actions including attorney's fees, resulting directly or
indirectly from the content of any Name Record contained in a Calling Name
database and provided to LSP or its Query-originating carrier customers, except
for such content related claims, damages or actions resulting from SWBT's
willful or wanton misconduct or gross negligence.
F. The Parties acknowledge that certain federal and/or state regulations
require that local exchange telephone companies make available to their
subscribers the ability to block the delivery of their telephone number and/or
name information to the terminating telephone when the subscriber originates a
telephone call. This blocking can either be on a call-by-call basis or on an
every call basis. Similarly, a party utilizing blocking services can unblock on
a call-by-call basis or every call basis. LSP acknowledges its responsibility
to and warrant that it will abide by information received in SS7 protocol during
call set-up that the calling telephone service subscriber wishes to block or
unblock the delivery of telephone number and/or name information to a CNDS
subscriber. LSP agrees not to attempt to obtain the caller's name information
by originating a Query to SWBT's Calling Name database where the subscriber
attempted to block such information, nor will LSP block information a subscriber
attempted to unblock. Therefore, SWBT, in addition to the limitations of
liability set forth in this Section, is not liable for any failure by LSP or its
Query-originating carrier customers to
72
abide by the caller's desire to block or unblock delivery of Calling Name
information, and LSP agrees to hold SWBT harmless from, and defend and
indemnify SWBT for, any and all liability, claims, damages or actions including
attorney's fees, resulting directly or indirectly from LSP or its
Query-originating carrier customers' failure to block or unblock delivery of
the Calling Name information when appropriate indication is provided, except
for such privacy related claims, damages or actions caused by SWBT's willful or
wanton misconduct or gross negligence.
G. In no event shall SWBT, its affiliates, subsidiaries or parent
corporation (including its directors, officers, employees or agents) have any
liability whatsoever to or through LSP for any indirect, special, or
consequential damages, including, but not limited to loss of anticipated
profits or revenue or other economic loss in connection with or arising from
anything said, omitted or done hereunder, even if SWBT has been advised of the
possibility of such damages.
7. Communication and Notices
A. Ordering and billing inquiries for the services described herein from
SWBT shall be directed to the Local Service Provider Service Center (LSPSC).
Ordering shall be done through the LSPSC using the form attached hereto as
Exhibit B.
8. Confidentiality
A. Identification. SWBT and LSP recognize and acknowledge that, in
connection with the services to be provided hereunder, it may disclose to the
other party proprietary or confidential customer, technical or business
information in written, graphic, oral or other tangible or intangible forms.
In order for such information to be considered "Proprietary Information" under
this Appendix, it must be marked "Confidential" or "Proprietary" or bear a
marking of similar import. Orally discussed information shall be considered
Proprietary Information only if contemporaneously identified as such and
reduced to writing and delivered to the other party with a statement or marking
of confidentiality within twenty (20) calendar days after oral disclosure.
B. Nondisclosure. Subject to Sections 8C through 8F, the Party (the
"Receiving Party") that receives Proprietary Information from the other Party
(the "Disclosing Party") agrees:
(1) That all Proprietary Information shall be and shall remain the
exclusive property of the Disclosing Party.
(2) To limit access to such Proprietary Information to authorized
employees and other individuals who have a need to know the Proprietary
Information in order to perform its obligation under this Appendix.
73
(3) To keep such Proprietary Information confidential and to use the same
level of care to prevent disclosure or unauthorized use of the received
Proprietary Information as it exercises in protecting its own Proprietary
Information of a similar nature.
(4) For a period of three (3) years following any disclosure, not to copy
or publish or disclose such Proprietary Information to others or authorize
anyone else to copy or publish or disclose such Proprietary Information to
others without the prior written approval of the Disclosing Party.
(5) To use such Proprietary Information only for purposes of performing
its obligations under this Appendix and for other purposes only upon such terms
as may be agreed upon between the Parties in writing.
C. Required Disclosures. The Receiving Party agrees to give notice to the
Disclosing Party of any demand to disclose or provide Proprietary Information
of the Disclosing Party to another person, under lawful process, prior to
disclosing or furnishing such Proprietary Information. Further, the Receiving
Party agrees to reasonably cooperate if the Disclosing Party deems it necessary
to seek protective arrangements. The Receiving Party may disclose or provide
Proprietary Information of the Disclosing Party to meet the requirements of a
court, regulatory body or government agency having jurisdiction over the Party;
provided, however, that the Receiving Party shall notify the Disclosing Party
so as to give the Disclosing Party a reasonable opportunity to object to such
disclosure. The Disclosing Party may not unreasonably withhold approval of
protective arrangements provided by any such court, regulatory body or
government agency. Nothing herein requires either Party to support the
position of any person or entity as to whether any particular Proprietary
Information is proprietary under applicable law or this Section 8.
D. Exceptions. Notwithstanding anything to the contrary contained in this
Appendix, the Proprietary Information described herein shall not be deemed
confidential or proprietary and the Receiving Party shall have no obligation to
prevent disclosure of such Proprietary Information if such Proprietary
Information:
(1) is already known to the Receiving Party;
(2) is or becomes publicly known, through publication, inspection of the
product, or otherwise, and through no wrongful act of the Receiving Party;
(3) is received from a third party without similar restriction and without
breach of this Section 8;
(4) is independently developed, produced or generated by the Receiving
Party;
(5) is furnished to a third party by the Disclosing Party without a
similar restriction on the third party's rights; or
74
(6) is approved for release by written authorization of the Disclosing
Party, but only to the extent of such authorization.
E. Permitted Uses. SWBT shall be permitted to use Proprietary Information
obtained through recording the volume of Customer Queries for the purposes of:
(a) estimation of facilities usage for jurisdictional separations; (b)
engineering and network planning of facilities; and (c) measurement for billing
purposes.
F. Legal Requirements. Notwithstanding anything to the contrary contained
in this Agreement, a Party's ability to disclose Proprietary Information or use
disclosed Proprietary Information is subject to all applicable statutes,
decisions and regulatory rules concerning the disclosure and use of such
Proprietary Information which, by their express terms, mandate a different
handling of such information.
9. Mutuality
To the extent that LSP stores its own Calling Name information in a database,
LSP agrees that such Calling Name information shall be available to SWBT on
terms and conditions comparable to those contained in this Appendix. Such
terms and conditions shall include but not be limited to, making such Calling
Name information available on a platform technically similar to that employed
by SWBT, and at a rate comparable to that charged by SWBT.
10. Attached and incorporated herein are:
Exhibit A - Specifications and Standards
Exhibit B - LIDB Access Service Order Form [to be attached].
75
EXHIBIT A
Page 1 of 1
Specifications and Standards
Descriptions of Subject Area
and Issuing Organization Document Number
------------------------ ---------------
A. Bellcore, SS7 Specifications TR-NPL-000246
B. ANSI, SS7 Specifications
- Message Transfer part T1.111
- Signaling Connection Control T1.112
Part
- Transaction Capabilities T1.114
Application Part
C. Bellcore, CLASS Calling Name Delivery TR-NWT-001188
Generic Requirements
D. Bellcore, CCS Network Interface TR-TSV-000905
Specifications
76
Exhibit B
Southwestern Xxxx Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
LIDB ACCESS VALIDATION SERVICES ORDER FORM
------------------------------------------
CUSTOMER NAME _________________________________________________________________
CARRIER CUSTOMER NAME ABBREVIATION _____________________________________________
(CCNA - THREE ALPHA CHARACTERS)
CUSTOMER ADDRESS _______________________________________________________________
________________________________________________________________________________
CUSTOMER BILLING NAME __________________________________________________________
(IF DIFFERENT THAN CUSTOMER NAME)
ACCESS CUSTOMER NAME ABBREVIATION ______________________________________________
(ACNA - THREE ALPHA CHARACTERS)
CUSTOMER BILLING ADDRESS _______________________________________________________
(IF DIFFERENT THAN CUSTOMER ADDRESS)
CITY, STATE, ZIP CODE __________________________________________________________
CUSTOMER BILLING CONTACT NAME AND TELEPHONE NUMBER _____________________________
___________________________________________________(____)_______________________
CREDIT INFORMATION: TYPE OF OWNERSHIP _____________________________
(S - SOLE OWNER; C - INCORP.; P - PARTNERSHIP)
IF INCORPORATED: STATE WHERE INCORP._______________ DATE INCORP. _______________
CHARTER NUMBER _________________________________________________________________
PRES. NAME ____________________________________ OFC. TEL. NO. (____)____________
V.P. NAME _____________________________________ OFC. TEL. NO. (____)____________
SECT. NAME ____________________________________ OFC. TEL. NO. (____)____________
TREA. NAME ____________________________________ OFC. TEL. NO. (____)____________
IF PARTNERSHIP:
PARTNERS NAME _________________________________ OFC. TEL. NO. (____)____________
PARTNERS NAME _________________________________ OFC. TEL. NO. (____)____________
PARTNERS NAME _________________________________ OFC. TEL. NO. (____)____________
PARTNERS NAME _________________________________ OFC. TEL. NO. (____)____________
LETTER OF AGENCY DATED_________________________ SIGNATURE ______________________
77
Southwestern Xxxx Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
SWBT ORDER NUMBER_________________
DESIRED DUE DATE__________________ FIRM DUE DATE_________________________
FOR NEW SERVICE, THE APPROXIMATE NUMBER OF NPA NXXs______________________
TYPE OF ACTIVITY______(N-NEW OR ADD; C-CHANGE; D-DISCONNECT; S-SUPP)
BILLING ACCOUNT NUMBER (BAN)_____________________________________________
CUSTOMER ORDER CONTACT NAME, ADDRESS, ZIP CODE, AND TELEPHONE NUMBER:
_________________________________
_________________________________
( )
_________________________________
CUSTOMER TECHNICAL CONTACT NAME AND TELEPHONE NUMBER:
( )
_________________________________________________________________________
CPOC SVC. REP. CONTACT NAME AND TELEPHONE NUMBER:
( )
_________________________________________________________________________
*SWBT CKR:_______________________ *TWO SIX CODE:______________________
(SWBT ID OF CCS/SS7 INTERCONN. SVC.)
1._________________________________
2._________________________________
3._________________________________
4._________________________________
* THIS INFORMATION SHOULD BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR CCS/SS7
INTERCONNECTION SERVICE PROVIDER.
78
Southwestern Xxxx Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE ____
ORIGINATING LINE NUMBER SCREENING ____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
REMARKS _______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
79
Southwestern Xxxx Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE ____
ORIGINATING LINE NUMBER SCREENING ____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
____ _________________ ____ _________________
REMARKS _______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
DATE AND TIME RECEIVED IN THE CPOC
80
Southwestern Xxxx Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
LIDB ACCESS VALIDATION SERVICE ORDER FORM
INSTRUCTIONS
THE LIDB ACCESS VALIDATION SERVICE ORDER FORM CONSISTS OF FOUR PAGES.
PAGE 1 - ALL THE INFORMATION ON THIS PAGE IS FOR ADMINISTRATIVE USE IN
ESTABLISHING THE LIDB BILLING ACCOUNT. ALL OF THE INFORMATION IS
REQUIRED ON THE INITIAL ORDER. ORDERS SUBMITTED SUBSEQUENT TO THE
ESTABLISHED ACCOUNT WILL REQUIRE ONLY THE CUSTOMER'S NAME AND ADDRESS.
THE OTHER ENTRIES WILL BE REQUIRED ONLY IF THERE IS A CHANGE TO THE
ORIGINAL INFORMATION.
PAGE 2 - ALL THE INFORMATION ON PAGE TWO IS FOR THE REQUESTED ACTIVITY. THIS
INFORMATION WILL ALWAYS BE REQUIRED.
1. DESIRED DUE DATE/FIRM DUE DATE - APPROXIMATE NUMBER OF NPA NXXs
***DESIRED DUE DATE IS USED WHEN A FIRM DUE DATE HAS NOT BEEN COORDINATED
WITH THE LIDB CUSTOMER PRIOR TO THE SUBMISSION OF THE ORDER FORM TO THE
ICSC.
THE LIDB CUSTOMER WILL ENTER THEIR DESIRED DATE FOR THEIR LIDB SERVICE TO
BE ESTABLISHED AND THE APPROXIMATE NUMBER OF NPA NXXs ASSOCIATED WITH THE
NEW SERVICE.
IF THE ORDER IS FOR SUBSEQUENT ACTIVITY TO AN ESTABLISHED ACCOUNT, THE
APPROXIMATE NUMBER OF NPA NXXs WILL NOT BE REQUIRED.
***FIRM DUE DATE IS USED WHEN THE CUSTOMER'S ACCOUNT MANAGER HAS
COORDINATED WITH THE SNAC TO ESTABLISH THE DUE DATE PRIOR TO THE ORDER
FORM BEING SENT TO THE CPOC.
81
Southwestern Xxxx Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
PAGE 2 INSTRUCTIONS CONTINUED -
2. TYPE OF ACTIVITY
N - SHOULD BE ENTERED TO ESTABLISH A LIDB SERVICE CAN ALSO BE
ENTERED TO ADD ADDITIONAL POINT CODES TO AN EXISTING SERVICE
C - SHOULD BE ENTERED TO ADD POINT CODES TO OR DELETE POINT
CODES FROM AN EXISTING SERVICE
D - SHOULD BE ENTERED TO COMPLETELY DISCONNECT AN EXISTING
SERVICE
S - SHOULD BE ENTERED TO MAKE A CHANGE ON A CURRENT ORDER PRIOR
TO THE COMPLETION DATE (i.e., CHANGE DUE DATE, CORRECT POINT
CODE(S), ETC.)
3. BILLING ACCOUNT NUMBER (BAN)
THE SWBT BILLING ACCOUNT NUMBER OF THE VALIDATION SERVICE AND/OR THE
CALLING NAME SERVICE
IF THE ORDER IS FOR NEW SERVICE, THIS FIELD WILL BE BLANK
4. CUSTOMER ORDER CONTACT...
A CONTACT WITH THE CUSTOMER THAT THE CPOC CAN COORDINATE WITH FOR THE
DESIRED DUE DATE OR CORRECTIONS TO AN ORDER.
5. CUSTOMER TECHNICAL CONTACT...
A TECHNICAL CONTACT WITH THE CUSTOMER THAT THE SWBT SNAC CAN COORDINATE
WITH FOR THE PROVISIONING OF THE SERVICE.
6. CPOC SERVICE REP....
THE SWBT CPOC SERVICE REPRESENTATIVE THAT NEGOTIATES THE ORDER WILL ENTER
THEIR NAME AND CONTACT INFORMATION.
7. SWBT CKR AND TWO SIX CODE
THIS INFORMATION WILL BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR ORDER
TO ESTABLISH THEIR CCS/SS7 INTERCONNECTION SERVICE OR FROM THEIR CCS/SS7
INTERCONNECTION SERVICE PROVIDER. THERE WILL ALWAYS BE FOUR LINKS FOR
ACCESS TO THE LIDB.
82
Southwestern Xxxx Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
INSTRUCTIONS FOR PAGES 3 & 4
LIDB HAS THREE QUERY SERVICES: VALIDATION, CALLING NAME (CNAM), AND ORIGINATING
LINE NUMBER SCREENING (OLNS)
THERE IS NOT A SPECIFIC NUMBER OF POINT CODES REQUIRED FOR ANY LIDB SERVICE.
THE LIDB CUSTOMER CAN SUBMIT AS MANY COPIES OF PAGES 3 & 4 AS REQUIRED FOR
THEIR POINT CODES PER REQUEST.
THE VALIDATION, CNAM, AND OLNS WILL BE ESTABLISHED ON A SINGLE BILLING ACCOUNT.
IF THE LIDB CUSTOMER WOULD LIKE SEPARATE BILLING ACCOUNTS, THEN SEPARATE BANs
MUST BE REQUESTED (i.e. "ESTABLISH SEPARATE BILLING ACCOUNTS") IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. IF AN EXISTING LIDB CUSTOMER WANTS TO
ESTABLISH THEIR LIDB CNAM ON A SEPARATE BILLING ACCOUNT, THEN THE LIDB CUSTOMER
SHOULD ENTER "NEW BAN (OR SEPARATE BAN) FOR THE LIDB CNAM SERVICE" IN THE
BILLING ACCOUNT NUMBER FIELD ON PAGE 2. THE SAME WILL APPLY FOR A SEPARATE BAN
FOR OLNS. IN ORDER TO SET UP SEPARATE BILLING ACCOUNTS, THE POINT CODES FOR
THE LIDB VALIDATION, CNAM, AND OLNS SERVICES CANNOT BE THE SAME. THE CUSTOMER
WILL USE BOTH PAGES 3 & 4 TO SUBMIT THEIR POINT CODES SEPARATELY FOR SEPARATE
BILLING ACCOUNTS.
1. LIDB VALIDATION SERVICE ___ CALLING NAME SERVICE ___ ORIGINATING LINE
NUMBER SCREENING ___
ENTER A CHECK XXXX OR AN "X" TO INDICATE WHICH OF THE LIDB SERVICES THE
ORDER FORM IS REQUESTING TO ESTABLISH OR DELETE. IF ALL LIDB SERVICES
ARE REQUESTED ON THE SAME ORDER, THE POINT CODES FOR EACH SERVICE MUST BE
LISTED ON SEPARATE PAGES. THIS WILL ENABLE SWBT TO APPLY THE CORRECT
NONRECURRING CHARGES.
2. ACTIVITY TYPES
IF A LIDB CUSTOMER NEEDS TO CHANGE AN EXISTING OPC ON AN ESTABLISHED
ACCOUNT, THE "D" SHOULD BE USED TO INDICATE THE OPC CHANGING FROM AND THE
"N" SHOULD BE USED TO INDICATE THE OPC CHANGING TO.
83
Southwestern Xxxx Telephone Company
Customer Provided Factor Reports
_______________________________________________________________________________
PAGES 3 & 4 INSTRUCTIONS CONTINUED -
LIST OF ORIGINATING POINT CODES AND ACTIVITY TYPE
-------------------------------------------------
ACTIVITY TYPES: N-ESTABLISHING OR ADDING NEW POINT CODE(S)
D-DELETE EXISTING POINT CODE(S)
PLEASE NOTE IN THE FOLLOWING EXAMPLES, THE ORDER FORM ACTIVITY IS THE ENTRY
FROM PAGE 2, NUMBER 3. THIS IS NOT THE ACTIVITY TYPE.
EXAMPLE 1-ORDER FORM ACTIVITY IS "N" TO ESTABLISH A NEW ACCOUNT AND SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX N XXX-XXX-XXX
- ----------- - -----------
EXAMPLE 2-ORDER FORM ACTIVITY IS "C" TO CHANGE AN EXISTING POINT CODE OR TO
ADD A NEW POINT CODE AND DELETE AN EXISTING POINT CODE''
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX D XXX-XXX-XXX
- ----------- - -----------
EXAMPLE 3-ORDER FORM ACTIVITY IS "D" TO DISCONNECT THE ACCOUNT AND THE SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
D XXX-XXX-XXX D XXX-XXX-XXX
- ----------- - -----------
THE REMARKS SECTION MAY BE UTILIZED BY SWBT OR THE LIDB CUSTOMER.
THE DATE AND TIME RECEIVED WILL BE ENTERED BY THE SWBT CPOC UPON RECEIPT OF THE
FORM.
AFTER THE FORM HAS BEEN COMPLETED, IT SHOULD BE MAILED OR FAXED TO THE SWBT
ICSC IN ST. LOUIS, MISSOURI.
84
APPENDIX DCO
EXCHANGE:
NIP(4)
[Insert address and Interconnection
Direction(1) LSP Location(2) DCO(3) V&H below] Method
------------ --------------- ------ ------------------- ---------------
(1) This column will be completed by indicating the direction of the terminating
traffic (e.g., either LSP to SWBT or SWBT to LSP.)
(2) LSP LOCATION - The address of the LSP Location that will house LSP's
interconnection equipment and through which SWBT will terminate traffic on the
LSP's network.
(3) DESIGNATED CONNECTING OFFICE (DCO) - The address of the SWBT end office or
tandem through which the LSP will terminate traffic on SWBT's network.
(4) NETWORK INTERCONNECTION POINT OR "NIP" - The NIP is the location where SWBT
and LSP facilities connect. The NIP will be identified by address and V&H
Coordinates. The NIP for traffic going from LSP to SWBT and going from SWBT to
LSP could be different. Where the physical interface occurs at a SWBT end
office or tandem, the NIP shall be located at the DCO. When SWBT and an LSP
agree to interconnect with a Mid-Span Fiber Interconnection (MSFI) the NIP is
the location where the fiber of SWBT and the fiber of the LSP is connected,
unless both Parties agree that the NIP is defined otherwise. Where the physical
interface occurs at the LSP location the NIP for that interconnection shall be
located at the LSP location.
00
XXXXXXXX XX
DIRECTORY ASSISTANCE SERVICE
This Appendix sets forth the terms and conditions under which Southwestern
Xxxx Telephone Company ("SWBT") agrees to provide Directory Assistance Services
(DA Services) for LSP ("LSP").
I. SERVICES
SWBT will provide the following DA Services:
A. DIRECTORY ASSISTANCE (DA) - consists of providing subscriber
listing information (name, address, and published telephone number
or an indication of "non-published status") to LSP's end users who
dial 411 or NPA+555+1212 and whenever appropriate, performing
Non-Published and Non-List service according to current SWBT methods
and practices.
B. DIRECTORY ASSISTANCE CALL COMPLETION (DACC) - an optional
service in which SWBT completes a call to the requested number on
behalf of LSP's end user, utilizing an automated voice system or
with operator assistance. SWBT agrees to provide DA with DACC upon
request.
II. DEFINITIONS
The following terms are defined as set forth below:
A. Non-List Telephone Number - A telephone number that, at the
request of the telephone subscriber, is not published in a telephone
directory, but is available by calling a SWBT DA operator.
B. Non-Published Number - A telephone number that, at the
request of the telephone subscriber, is neither published in a
telephone directory nor provided by a SWBT DA operator.
C. Published Number - A telephone number that is published in a
telephone directory and is available upon request by calling a SWBT
DA operator.
D. Call Branding - the procedure of identifying a providers name
audibly and distinctly to the consumer at the beginning of each DA
Services call, and prior to completion of a DACC request.
86
III. CALL BRANDING AND RATE REFERENCE REQUIREMENTS
A. REQUIREMENTS - Where SWBT provides LSPs OS and DA services
via the same trunk, both the OS and DA calls will be branded with
the same brand. Where SWBT is only providing DA service on behalf
of the LSP, specific DA branding can be provided upon request. Such
branding will be provided pursuant paragraph B. below.
B. CALL BRANDING - SWBT will brand DA in LSP's name based upon
the criteria outlined below:
1. LSP will provide SWBT with written specification
of its company name to be used in creating LSP specific
branding messages for its DA calls.
2. An initial non-recurring charge applies per TOPS
switch, per load for the establishment of Call Branding as
well as a charge per TOPS switch, per subsequent load to
change the brand. In addition, a per call charge applies for
every DA call handled by SWBT on behalf of LSP when such
services are provided in conjunction with: i) the purchase of
SWBT's unbundled local switching; or ii) when multiple brands
are required on a single Operator Services trunk. Prices for
Call Branding are as outlined in Exhibit II, attached hereto
and incorporated herein.
C. DIRECTORY ASSISTANCE (DA) RATE/REFERENCE INFORMATION - SWBT
will provide LSP DA Rate/Reference Information based upon the
criteria outlined below:
1. LSP will furnish DA Rate and Reference
Information in a mutually agreed to format or media thirty
(30) days in advance of the date when the DA Services are to
be undertaken.
2. LSP will inform SWBT, in writing, of any changes
to be made to such Rate/Reference Information ten (10) working
days prior to the effective Rate/Reference change date. LSP
acknowledges that it is responsible to provide SWBT updated
Rate/Reference Information in advance of when the
Rates/Reference Information are to become effective.
3. In all cases when a SWBT Operator receives a rate
request from a LSP end user, SWBT will quote the applicable DA
rates as provided by LSP.
An initial non-recurring charge will apply per TOPS switch for loading of
LSP's Operator Services Rate/Reference Information as well as a charge per TOPS
switch for each subsequent change to either the LSP's DA Services Rate or
Reference Information.
87
IV. RESPONSIBILITIES OF THE PARTIES
A. SWBT will be the sole provider of DA Services LSP's local
serving area(s) listed in Exhibit I, which is attached to this
Appendix, beginning on the service effective date also shown in
Exhibit I.
B. LSP will be responsible for providing the equipment and
facilities necessary for signaling and routing calls with Automatic
Number Identification (ANI) to each SWBT operator switch. Should
LSP seek to provide interexchange DA Service under this agreement it
is responsible for ordering the necessary facilities. Nothing in
this agreement in any way changes the manner in which an
interexchange Carrier obtains access service for the purpose of
originating or terminating interexchange traffic.
C. Facilities necessary for the provision of DA Services shall
be provided by the parties hereto, using standard trunk traffic
engineering procedures to insure that the objective grade of service
is met. Each party shall bear the costs for its own facilities.
LSP shall bear the costs of facilities necessary for signaling and
routing calls with Automatic Number Identification (ANI) to each
SWBT operator switch. SWBT shall bear the cost of facilities and
equipment necessary to provide DA Services.
D. LSP will furnish in writing to SWBT, thirty (30) days in
advance of the date when the DA Services are to be undertaken, all
end user listing records and information required by SWBT to provide
the DA Services.
E. LSP will keep end user listing records current using
reporting forms and procedures that are mutually acceptable to both
parties, and will inform SWBT, in writing, of any changes to be made
to such records. LSP will send the DA listing records to SWBT via a
local manual service order, T-XXXX, magnetic tape or by any other
mutually agreed to format or media.
F. SWBT will accumulate and provide LSP such data as necessary
for LSP to verify traffic volumes and xxxx its end users.
V. METHODS AND PRACTICES
SWBT will provide the DA Services to LSP's end users in accordance
with SWBT's DA methods and practices that are in effect at the time the
DA call is made, unless otherwise agreed in writing by both parties.
VI. PRICING
Pricing for DA Services shall be based on the rates specified in
Exhibit II, PRICING, which is attached hereto and made part of this
Appendix. The prices will apply from the
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service effective date through the term of this agreement as specified in
paragraph X., A. below. Beyond the specified term of this Appendix, SWBT
may change the prices for the provision of DA Services upon one
hundred-twenty (120) days' notice to LSP.
VII. MONTHLY BILLING
SWBT will render monthly billing statements to LSP, and remittance
in full will be due within thirty (30) days of receipt.
VIII. LIABILITY
A. In addition to the liability provisions contained in the
Agreement, LSP agrees to defend, indemnify, and hold harmless SWBT
from any and all losses, damages, or other liability including
attorneys fees that LSP may incur as a result of claims, demands,
wrongful death actions, or other suits brought by any party that
arise out of LSP's end users use of DA Services. LSP shall defend
against all end user claims just as if LSP had provided such service
to its end user with the LSP's own operators and shall assert its
tariff limitation of liability for benefit of both SWBT and LSP.
B. LSP also agrees to release, defend, indemnify, and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any person
or persons caused or claimed to be caused, directly, or indirectly,
by SWBT employees and equipment associated with provision of the DA
Services. This provision includes but is not limited to suits
arising from disclosure of the telephone number, address, or name
associated with the telephone called or the telephone used to call
the DA Services.
IX. TERMS OF APPENDIX
A. Unless sooner terminated, this Appendix will continue in
force for a period of one (1) year from the effective date of this
agreement and thereafter until terminated by one hundred-twenty
(120) days notice in writing from either Party to the other.
B. If LSP terminates this agreement prior to the agreed-upon
term of this Appendix, LSP shall pay SWBT, within thirty (30) days
of the issuance of a final xxxx by SWBT, all amounts due for actual
services provided under this Appendix, plus estimated monthly
charges for the remainder of the term. Estimated charges will be
based on an average of the actual monthly amounts billed by SWBT
pursuant to this Appendix prior to its termination.
C. The rates applicable for determining the amount(s) under the
terms outlined in this Section are those specified in Exhibit II.
00
XXXXXXXX XX - EXHIBIT 1
DIRECTORY ASSISTANCE SERVICES EXCHANGE LIST
EFFECTIVE: _____________________
(mm/dd/yr)
The following table depicts the services and exchanges covered by this
Appendix:
SWBT SERVING LSP'S
OFFICE(S) OFFICE(S) TOLL (555) LOCAL (411) DACC
00
XXXXXXXX XX
XXXXXXXX
EXHIBIT II
PRICING - FACILITIES BASED
EFFECTIVE: ______________________
(mm/dd/yr)
The following rates will apply for each service element:
A. DIRECTORY ASSISTANCE (DA)
This usage rate applies to each DA call.
Rate per call $0.425
B. DIRECTORY ASSISTANCE CALL COMPLETION
DACC
This usage rate applies to each DA call
that has been completed to the requested
number.
Rate per completed call $0.24
C. CALL BRANDING
An initial non-recurring charge applies
per TOPS switch, per brand for the
establishment of Call Branding.
Rate per initial load $2,700.00
Rate per load for Brand change $2,700.00
Per Call (1) $0.02
D. DA SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies
per TOPS switch for the initial load of
Carrier's DA Services Rate/Reference
Information. An additional non-recurring
charge applies for each subsequent change
to Rate/Reference Information.
Rate per initial load $4,100.00
Rate per subsequent rate change $2,900.00
Rate per subsequent reference change $2,900.00
(1) A per call charge will apply when DA services are provided in conjunction
with i) unbundled local switching or ii) when multiple brands are required on a
single trunk.
00
XXXXXXXX XXX
This Appendix to Attachment Compensation sets forth the terms and
conditions under which the Parties will distribute revenue from the joint
provision of Feature Group A (FGA) Switched Access Services.
These services will be provided within a Local Access and Transport Area
(LATA) and/or an Extended Area Service (EAS) arrangement. The Primary Company
will compensate the Secondary Company only to the extent that it has not
already been compensated under its interstate or intrastate access service
tariffs or other settlement/contract arrangements. This Appendix is subject to
applicable tariffs.
1.0 DEFINITIONS
1.1 Local Access and Transport Area (LATA) means a pre-established geographic
area encompassing one or more local exchange areas within which a Party
may provide telecommunications services.
1.2 The term Extended Area Service (EAS) as used in this Appendix means the
provision of message telephone exchange service between two or more local
exchange service areas without a toll charge.
1.3 Subscriber Access Lines will mean a communication facility provided under
a general and/or exchange service tariff extended from a customer premise
to a central office switch which may be used to make and receive exchange
service calls, intrastate toll service or interstate toll service calls.
1.4 Feature Group A Switched Access Service includes all facilities and
services rendered in furnishing FGA access service, both in EAS and
non-EAS (i.e., LATA wide terminations) areas, in accordance with the
schedule or charges, regulations, terms and conditions stated in the
interstate or intrastate access service tariffs of the Parties.
1.5 The Primary Company denotes the Party with the Primary office(s).
1.6 The Primary Office is an office which: (1) directly or jointly connects
to an interexchange carrier and/or end user: and (2) provides joint FGA
switched access service to that interexchange carrier and/or end user with
other end offices.
1.7 The Secondary Company denotes the Party with the secondary office(s).
1.8 The Secondary Office is any office involved in providing joint FGA
switched access to an Interexchange carrier and/or end user through the
switching facilities of the Primary office.
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1.9 Revenues under this Appendix are those FGA Switched Access amounts due
the Primary and Secondary Companies under their applicable tariffs, less
uncollectible revenues. Revenues for any other services are not included.
Uncollectible revenues are those revenues the Primary Company is unable
to collect, using its regular established collection procedures. The
Primary Company may offset uncollectibles against current revenue
distribution.
1.10 Access Minutes or Minutes of Use (MOUs) are those minutes of use as
described in Part 69 of the Federal Communications Commission s Rules, and
are limited to those FGA MOUs which originate and/or terminate in the
Secondary Office(s) covered by this Appendix.
1.11 Currently Effective Tariff Rate means the approved tariff rate effective
on the first day of the month for which compensation is being calculated.
2.0 UNDERTAKING OF THE PARTIES
2.1 The Secondary Company will notify the Primary Company of all tariff rate
revisions, affecting this Appendix which the FCC or other appropriate
regulatory authority allows to take effect, at least 30 days in advance of
their effective date. Revenue distribution will be based on the revised
rates 45 days after the effective date of the tariff revisions. However,
if the secondary Company fails to notify the Primary Company of a new rate
within 30 days of its effective date, the Primary company may delay
implementation of the new rate until the next month s revenue distribution
cycle, and will not be required to adjust the previous bills retroactive.
2.2 Each party will furnish to the other such information as may reasonably
be required for the administration, computation and distribution of
revenue, or otherwise to execute the provisions of this appendix.
3.0 ADMINISTRATION OF REVENUE DISTRIBUTION
The Primary Company will be responsible for the administration, computation
and distribution of the FGA access service revenues collected on behalf of
the Secondary Company.
4.0 MINUTES OF USE (MOUS) DEVELOPMENT
4.1 The Parties will calculate the amount of FGA revenues due each Party, by
determining the amount of FGA MOUs attributable to each Party as described
below. The Primary Company will then multiply the MOUs by the rates in
the
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Secondary Company's applicable tariff to determine the amounts tentatively
due to the Secondary Company.
4.2 TERMINATING MOUS DEVELOPMENT
4.2.1 Actual monthly premium (charged at equal access end office) and
non-premium (charged at non-equal access end offices) terminating FGA
access MOUs for each office in the LATA or a FGA access EAS area will be
measured by the Primary Company.
4.2.2 Where the Primary Company cannot measure or identify the terminating FGA
MOUs by end office, terminating MOUs will be total unmeasured MOUs
allocated to the LATA. In this event, those MOUs will be distributed
based upon the ratio of each Party's subscriber access lines, as
identified in Exhibit B, which is attached hereto and made a part hereof,
to the total subscriber access lines in the FGA access area as determined
by the Primary Company.
4.3 ORIGINATING MOUS DEVELOPMENT
4.3.1 The Primary Company will derive and distribute monthly originating FGA
access MOUs, billed by the Primary Company, to each Secondary Company s
end office in the EAS calling area, as identified in Exhibit A, which is
attached hereto and made a part hereof, based upon a ration of each Party
s subscriber access lines to the total subscriber access lines in the
appropriate EAS area as determined by the Primary Company.
4.3.2 The parties recognize that since originating non-EAS calls to the FGA
service area are rated and billed as intraLATA toll, such usage is assumed
to be minimal. Therefore, originating FGA access MOUs will not be
distributed to end offices outside an EAS calling area.
5.0 CALCULATION OF REVENUE DISTRIBUTION
5.1 The amount of premium or non-premium revenues due each party each month
will be equal to the sum of Originating and Terminating premium or
non-premium revenue for each end office. These revenues will be
calculated by the Primary Company by multiplying each of the Secondary
Company s effective interstate and/or intrastate FGA switched access
tariff rate elements (except the Local Transport element described below)
by the appropriate MOU calculation under Sections 4.2.1 and 4.2.2.
5.2 Local Transport (or its equivalent under the Secondary Company s tariff
and called Transport in this agreement) compensation will be determined
for each company by multiplying each of the Secondary Company s Transport
rates by the appropriate MOUs (as calculated under Sections 4.2.1 and
4.2.2) by the
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Secondary Company's percentage ownership of facilities agreed on by the
Parties and set out in Exhibit B, which is attached hereto and made a part
hereof.
6.0 REVENUE DISTRIBUTION AMOUNTS, MONTHLY STATEMENTS AND PAYMENTS
6.1 The Primary Company each month will calculate and prepare a monthly
compensation statement reflecting the revenue distribution amounts for
FGA, both EAS and non-EAS, access service due the Secondary Company.
6.2 The monthly compensation statement will show, for each Secondary Office,
separately:
6.2.1 The total number of non-premium or premium terminating MOUs and
revenue.
6.2.2 The total number on non-premium or premium originating MOUs and
revenues.
6.2.3 The total compensation due the Secondary Company, by rate element.
6.2.4 The number of terminating MOUs recorded by the Primary Company.
6.2.5 The number of originating MOUs estimated by the Primary Company pursuant
to Section 4.3 contained herein.
6.2.6 The number of access lines used to prorate originating usage pursuant to
Section 4.3 contained herein.
6.2.7 The percent ownership factor, if any, used to prorate Local Transport
revenues.
6.2.8 Adjustments for uncollectibles.
6.3 Within 60 Calendar days after the end of each billing period, the Primary
Company will remit the compensation amount due the Secondary Company.
Where more than one compensation amount is due, they may be combined into
a single payment.
7.0 MISCELLANEOUS PROVISIONS
7.1 This appendix will remain in effect until terminated by thirty (30)
calendar days notice by either Party to the other.
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EXHIBIT A
EAS Locations for Originating and Terminating
Feature Group A Access Service
Primary Office Secondary Office
Company Company
CLLI CODE NPA-NXX
ACCESS LINE CLLI CODE NPA-NXX
96
EXHIBIT B
Location for LATA Wide Termination
of Feature Group A Access Service in
Non-EAS Calling Areas
SECONDARY OFFICE COMPANY
CLLI CODE NPA-NXX Access Line % Ownership of LATA
Transport
Facilities
97
APPENDIX HOST
This Appendix sets forth the terms and conditions under which SWBT will
perform hosting responsibilities for LSP for (1) the provision of billable
message data and/or access usage data received from such LSP for distribution
to the appropriate billing and/or processing location via SWBT's in-region
network or via the nationwide Centralized Message Distribution System (CMDS) or
(2) billable message data and/or access usage data received from other Local
Exchange Carriers (LECs) or LSPs or from CMDS to be distributed to such LSP.
This Appendix covers hosting in region (i.e., Missouri, Arkansas, Kansas,
Oklahoma and Texas) and hosting out of region. Hosting out of region is only
available to an LSP that is a Full Status Revenue Accounting Office (XXX)
company.
I. DEFINITIONS
A. Access Usage Record (AUR) - a message record which contains
the usage measurement reflecting the service feature group, duration
and time of day for a message which is subsequently used by a LEC to
xxxx access to an Interexchange Carrier (IXC).
B. Bellcore Client Company Calling Card and Third Number
Settlement (BCC CATS) System - nationwide system used to produce
information reports that are used in the settlement of LEC or LSP
revenues recorded by one BCC (or LEC or LSP within the territory of
that BCC) and billed to a customer of another BCC (or LEC or LSP
within the territory of that BCC) as described in accordance with
the Bellcore Practice BR 000-000-000.
C. Billable Message Record - a message record containing details
of a completed call which has been carried by a LEC over its
facilities or by LSP over its facilities and such record is to be
used to xxxx an end user.
D. Centralized Message Distribution System (CMDS) - the national
network of private line facilities used to exchange Exchange Message
Record (EMR) formatted billing data between a company originating a
message and the company billing for a message.
E. Exchange Message Record (EMR) - industry standard message
format as described in accordance with the Bellcore Practice BR
000-000-000 which was developed to facilitate the exchange of
telecommunications message information.
F. Full Status Revenue Accounting Office (XXX) - an LSP or LEC
that is responsible for formatting EMR records, and for editing and
packing of such detail records into files for distribution.
98
G. In-Region Hosting - includes the transport, using Hosting
Company network, of (1) billable message record data for LEC or LSP
transported messages and/or access usage record data that originate
in a region and are delivered by the LSP to SWBT at a mutually
agreed upon location within the territory of SWBT to be sent to
another LEC or LSP for billing; and (2) billable message record data
and/or access usage data received from CMDS or another LEC or LSP to
be delivered to the LSP for billing to its end user located within
the five state territory of SWBT.
H. Out-of-Region Hosting - includes the transport, using the
national CMDS network, of (1) billable message record data for LEC
or LSP transported messages and/or access usage record data that
originate out of region and are delivered by the LSP to SWBT and are
to be sent to another LEC or LSP for billing; and (2) billable
message record data and/or access usage data received from CMDS or
another LEC or LSP to be delivered to the LSP for billing to its end
user located outside SWBT's five state territory.
I. Non-Full Status Revenue Accounting Office (XXX) - An LSP or
LEC that has assigned responsibility to SWBT for editing, sorting
and placing billing message record detail and/or access usage record
detail into packs for distribution.
II. RESPONSIBILITIES OF THE PARTIES
A. All data forwarded from LSP must be in the industry standard
EMR format in accordance with Bellcore Practice BR 000-000-000. The
LSP is responsible to ensure all appropriate settlement plan
indicators are included in the message detail, i.e., the Bellcore
Client Company Calling Card and Third Number Settlement (BCC CATS)
System. The LSP acknowledges that the only message records subject
to this Hosting Appendix are those that arise from LEC or LSP
transported billable messages and/or access usage records to be used
by a LEC or LSP for the purpose of billing access to an IXC.
B. When LSP delivers billable message data and/or access usage
data to SWBT which must be forwarded to another location for billing
purposes, SWBT will accept data from the LSP, perform edits to make
message detail and access usage records consistent with CMDS
specifications, and use its in region data network to forward this
data to the appropriate billing company or to access the national
CMDS network in order to deliver this data to the appropriate
billing and/or processing company.
If LSP is not a Full Status XXX Company, SWBT will also sort billable
message detail and access usage record detail by Revenue Accounting
Office, Operating Company Number or Service Bureau and split data
into packs for invoicing prior to using its in region network to
forward this data to the appropriate billing company or to access the
national CMDS network in order to deliver such data to the
appropriate billing company.
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C. For billable message data and/or access usage data received
by SWBT for delivery to an LSP location, SWBT will use its in region
data network to receive this data from other LECs or LSPs or from
CMDS in order to deliver such billable message data and/or access
usage data to the agreed upon billing LSP location.
III. BASIS OF COMPENSATION
LSP agrees to pay SWBT a per record charge for billable message
records and/or access usage records that are received from LSP and
destined for delivery to another location for billing, at the rates
listed below:
Per Record Charge
Full Status XXX Company
Hosting Company Network $.002
National CMDS Network $.005
Non-Full Status XXX Company
Hosting Company Network $.007
National CMDS Network $.010
As part of this per record charge, SWBT will provide Confirmation
and/or Error Reports and any Intercompany Settlement (ICS) Reports, such
as the Bellcore Client Company Calling Card and Third Number Settlement
System (BCC CATS), as needed.
LSP agrees to pay SWBT a per record charge for billable message
records and/or access usage records which are entered on a magnetic tape
or data file for delivery to the LSP, at the rate listed below:
Per Record Charge $.003
IV. LIABILITY
A. Any failure to populate accurate information in accordance
with Section II.A. will be the responsibility of the LSP.
B. SWBT will not be liable for any costs incurred by the LSP
when the LSP is transmitting data files via data lines and a
transmission failure results in the non-receipt of data by SWBT.
C. SWBT SHALL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RESULTING
FROM, OR ARISING OUT OF, OR IN CONNECTION WITH, THIS APPENDIX.
D. SWBT shall not be liable for any losses or damages arising
out of errors, interruptions, defects, failures, or malfunction of
the services provided hereunder,
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including any and all associated equipment and data processing
systems, except such losses or damages caused by the sole negligence
of SWBT. Any losses or damage for which SWBT is held liable under
this Appendix shall in no event exceed the amount of charges made for
the services provided hereunder during the period beginning at the
time SWBT receives notice of the error, interruption, defect, failure
or malfunction to the time service is restored.
E. The LSP agrees to release, defend, indemnify, and hold
harmless SWBT from any and all losses, damages, or other liability,
including attorney fees, that it may incur as a result of claims,
demands, or other suits brought by any party that arise out of the
use of this service by the LSP, its customers or end users. The LSP
shall defend SWBT against all end user claims just as if LSP had
provided such service to its end users with its own employees.
F. The LSP also agrees to release, defend, indemnify and hold
harmless SWBT from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person(s), caused or claimed to be caused, directly or indirectly,
by SWBT employees and equipment associated with provision of this
service. This includes, but is not limited to suits arising from
disclosure of any customer specific information associated with
either the originating or terminating numbers used to provision this
service.
VI. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF THE DATA SUPPLIED BY LSP WHEN THIS DATA IS
ACCESSED AND USED BY A THIRD PARTY.
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APPENDIX ITR
(TRUNKING REQUIREMENTS)
This Appendix provides descriptions of the trunking requirements for the
LSP and SWBT interconnection. The attached scenarios depict the recommended
trunk groups for local, intraLATA toll, interLATA "meet point", mass calling,
E911 and Operator Services interconnection. All references to incoming and
outgoing trunk groups are from the perspective of the LSP.
I. LOCAL TRAFFIC AND INTRALATA TOLL TRAFFIC
(a) The LSP Originating (The LSP to SWBT)
When SWBT has a combined local and access tandem in an
exchange, IntraLATA Toll Traffic may be combined with the Local
Traffic on the same trunk group. When SWBT has more than one
combined local and access tandem in an exchange, the LSP shall
provide a separate trunk group to each SWBT tandem. When there are
separate SWBT access and local tandems in an exchange, a separate
local trunk group shall be provided to the local tandem and a
separate IntraLATA toll trunk group shall be provided to the access
tandem. This trunk group(s) shall be one-way or two-way
directionalized outgoing only and will utilize Signaling System 7
(SS7) or multifrequency (MF) protocol signaling.
(b) The LSP Terminating (SWBT to LSP)
When SWBT has a combined local and access tandem, SWBT shall
normally combine the Local and IntraLATA Toll Traffic over a single
trunk group to the LSP. When SWBT has a separate access and local
tandem in an exchange, a trunk group shall be established from each
tandem to the LSP. This trunk group(s) shall be one-way or two-way
directionalized incoming only and will utilize SS7 or MF protocol
signaling.
(c) Direct End Office Trunking
The Parties shall establish direct end office primary high
usage trunk groups for Local Traffic and/or IntraLATA Toll Traffic
when end office traffic requires twelve or more trunks. If LSP has
established collocation to the end office, the trunks shall be
provisioned over the LSP collocation facility. If the LSP has no
collocation facilities, SWBT shall provision the trunks from the
NIP to the end office. IntraLATA Toll Traffic shall be provided
over a separate trunk group to the SWBT access tandem.
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II. ACCESS TOLL CONNECTING TRUNKS
InterLATA traffic shall be transported between the LSP Central
Office and the SWBT access tandem over a "meet point" trunk group
separate from local and intraLATA toll traffic. The access toll
connecting trunk group will be established for the transmission and
routing of Exchange Access traffic between the LSP's end users and
interexchange carriers via a SWBT access tandem. When SWBT has more than
one access tandem within an exchange, the LSP shall utilize a single
access toll connecting trunk group to one SWBT tandem within the
exchange. This trunk group may be set up as one-way or two-way (two-way
is preferred) and will utilize SS7 or MF protocol signaling. The traffic
use code and modifier for this trunk group should be MDJ (see Scenario 1,
2, 3, or 4).
III. 000 (000) XXXXXXX
If the LSP chooses SWBT to handle 800 (888) database queries from
its central office switches, all the LSP originating 800 (888) service
queries will be routed over the InterLATA Interexchange Carrier (MDJ)
trunk group. This traffic will include a combination of both InterLATA
Interexchange Carrier 800 (888) service and IntraLATA LEC 800 (888)
service that will be identified and segregated by carrier through the
database query handled through the SWBT tandem switch.
A separate trunk group from each Party to the other will be required
for IntraLATA 800 service if either Party chooses to handle the 800
database queries from its switch location. The purpose of the separate
trunk group is to provide for the segregation of originating 800
IntraLATA call volumes to ensure the proper billing of intercompany
settlement compensation.
The trunk group shall be set up as one-way outgoing only and will
utilize SS7 protocol signaling. The traffic use code and modifier for
this trunk group should be DD800J (see Scenario 1, 2, 3, or 4).
IV. E911
A segregated trunk group will be required to each appropriate E911
tandem within the exchange in which the LSP offers the Exchange Service.
This trunk group shall be set up as a one-way outgoing only and shall
utilize XX XXXX signaling. The traffic use code and modifier for this
trunk group shall be ESJ (see Scenario 1, 2, 3, or 4).
V. MASS CALLING (PUBLIC RESPONSE CHOKE NETWORK)
A segregated trunk group shall be required to the designated Public
Response Choke Network tandem in each serving area. This trunk group
shall be one-way outgoing only and shall utilize MF signaling. It is
recommended that this group be sized as follows:
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<15001 access lines (AC) 2 trunks (min)
15001 to 25000 AC 3 trunks
25001 to 50000 AC 4 trunks
50001 to 75000 AC 5 trunks
>75000 AC 6 trunks (max)
The traffic use code and modifier for this trunk group shall be
TOCRJ (see Scenario 1, 2, 3, or 4).
VI. OPERATOR SERVICES
(a) No Operator Contract:
Inward Operator Assistance (Toll Center (TC) Code plus 121) -
The LSP may choose from two interconnection options for Inward
Operator Assistance as follows:
Option 1 - Interexchange Carrier (IXC) Carrier
The LSP may utilize the Interexchange Carrier Network (see
Scenario 6). The LSP operator will route its calls requiring
inward operator assistance through its designated IXC POP to SWBT's
TOPS tandem. SWBT shall route its calls requiring inward operator
assistance to the LSP's Designated Operator Switch (TTC) through
the designated IXC POP.
Option 2 - The LSP Operator Switch
The LSP reports its switch as the designated serving operator
switch (TTC) for its NPA-NXXs and requests SWBT to route its calls
requiring inward operator assistance to the LSP. This option
requires a segregated two-way (with MF signaling) trunk group from
SWBT's Access Tandem to the LSP switch. The traffic use code and
modifier for this trunk group should be OAJ (see Scenario 7). The
LSP's operator will route its calls requiring inward operator
assistance to SWBT's operator over an IXC network.
(b) Operator Contract with SWBT:
(i) Directory Assistance (DA):
The LSP may contract for DA services only. A segregated
trunk group for these services would be required to SWBT's
TOPS tandem. This trunk group is set up as one-way outgoing
only and utilizes MF and Operator Services signaling. The
traffic use code and modifier for this trunk group should be
DAJ (see Scenario 5).
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(ii) Directory Assistance Call Completion (DACC):
The LSP contracting for DA services may also contract
for DACC. This requires a segregated one-way trunk group to
SWBT's TOPS tandem. This trunk group is set up as one-way
outgoing only and utilizes MF signaling. The traffic use
code and modifier for this trunk group should be DACCJ (see
Scenario 5).
(iii) Busy Line Verification:
When SWBT's operator is under contract to verify the
LSP's end user loop, SWBT will utilize a segregated one-way
with MF signaling trunk group from SWBT's Access Tandem to
the LSP switch. The traffic use code and modifier for this
trunk group should be VRJ (see Scenario 5)
(iv) Operator Assistance (0+, 0-):
This service requires a one-way trunk group from the LSP
switch to SWBT's TOPS tandem. Two types of trunk groups may
be utilized. If the trunk group transports DA/DACC, the
trunk group will be designated as ETCMFJ (0-, 0+, DA, DACC)
(see Scenario 5). If DA is not required or is transported on
a segregated trunk group, then the group will be designated
as ETCM2J (see Scenario 5). MF and Operator Services
signaling will be required on the trunk group.
VII. Trunk Design Blocking Criteria
Trunk forecasting and servicing for the Local and IntraLATA Toll
trunk groups shall be based on the industry standard objective of 2%
overall time consistent average busy season busy hour loads (1% from the
End Office to the Tandem and 1% from the Tandem to the End Office based
on Xxxx Xxxxxxxxx B.01M [Medium Day-to-Day Variation] until traffic data
is available). Listed below are the trunk group types and their
objectives:
Trunk Group Type Blocking Objective (Xxxx Xxxxxxxxx M)
---------------- -------------------------------------
Local Tandem 1%
Local Direct 2%
IntraLATA Interexchange 1%
911 1%
Operator Services (DA/DACC) 1%
Operator Services (0+, 0-) 0.5%
InterLATA Tandem 0.5%
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VIII. FORECASTING/SERVICING RESPONSIBILITIES
Both Parties agree to provide an initial forecast for establishing
the initial interconnection facilities. Subsequent forecasts will be
provided on a semi-annual basis concurrent with the publication of the
SWBT General Trunk Forecast including yearly forecasted trunk quantities
for all trunk groups described in this Appendix for a minimum of three
years and the use of Common Language Location Identifier (CLLI-MSG) which
is described in Bellcore documents BR795-100-100 and BR795-400-100.
Trunk servicing will be performed on a monthly basis at a minimum.
SWBT shall be responsible for forecasting and servicing the trunk
groups terminating to the LSP. The LSP shall be responsible for
forecasting and servicing the trunk groups terminating to SWBT end users
and/or to be used for tandem transit to other provider's networks,
operator services and DA service, and InterLATA toll service. Standard
trunk traffic engineering methods will be used as described in Xxxx
Communications Research, Inc. (Bellcore) document SR-TAP-000191, Trunk
Traffic Engineering Concepts and Applications.
IX. TRUNK SERVICING
1. Orders between the Parties to establish, add, change or
disconnect trunks shall be processed by use of an Access Service
Request ("ASR").
2. All Parties shall jointly manage the capacity of local
Interconnection Trunk Groups. Either Party may send the other Party
an ASR to initiate changes to the Local Interconnection Trunk Groups
that the ordering Party desires based on the ordering Party's
capacity assessment. The receiving Party will issue a Firm Order
Confirmation ("FOC") and a Design Layout Record ("DLR") to the
ordering Party within five (5) business days after receipt of the
ASR.
3. Orders that comprise a major project (i.e., new switch
deployment) shall be submitted in a timely fashion, and their
implementation shall be jointly planned and coordinated.
4. SWBT will process trunk service requests submitted via a
properly completed ASR within twenty (20) business days of receipt
of such ASR. Facilities must also be in place before trunk orders
can be completed.
5. In the event that a Party requires trunk servicing within
shorter time intervals than those provided for in this Article XI
due to a bona fide end user demand, such Party may designate its ASR
as an "Expedite" and the other Party shall use best efforts to issue
its FOC and DLR and install service within the requested interval.
6. Each Party shall be responsible for engineering their
networks on their side of the NIP.
106
X. SERVICING OBJECTIVE/DATA EXCHANGE
Each Party agrees to service trunk groups to the foregoing blocking
criteria in a timely manner when trunk groups exceed measured blocking
thresholds on an average time consistent busy hour for a 20 business day study
period. Upon request, each Party will make available to the other, trunk group
measurement reports for trunk groups terminating in the requesting Party's
network. These reports will contain offered load, measured in CCS (100 call
seconds), that has been adjusted to consider the effects of overflow, retrials
and day-to-day variation. They will also contain overflow CCS associated with
the offered load, day-to-day variation, peakedness factor, the date of the last
week in the four week study period and the number of valid days of measurement.
These reports shall be made available at a minimum on a semi-annual basis upon
request.
XI. SPECIFICATIONS
All DS-1 and DS-3 facilities utilized for trunking established or employed
by the Parties for purposes of this STC shall meet the specifications set forth
in SWBT's TP-76625 dated June, 1990 and TP-76839 dated January, 1996.
XII. TRUNK FACILITY UNDER UTILIZATION
At least once a year the Parties shall exchange trunk group measurement
reports as detailed above for trunk groups terminating to the other Party's
network. Each Party will determine the required trunks for each of the other
Party's trunk groups for the previous 12 months. Required trunks will be based
on the Blocking Objectives under "Trunk Design Blocking Criteria" above and time
consistent average busy hour usage measurements from the highest 4 consecutive
week (20 business day) study. Trunk groups with excess capacity will be
identified to the other Party as eligible for downsizing. Excess capacity
exists when a trunk group, on a modular trunk group design basis, has 48 trunks
(2 modular digroups) or 10%, whichever is larger, over the required number of
trunks.
The party with excess trunking capacity will assess the trunk capacity
based on forecasted requirements and agrees to disconnect trunks in excess of
forecasted requirements for the next 12 months. If after 12 months the trunk
group continues to have excess capacity the party agrees to take timely steps to
disconnect all excess capacity.
XIII. Where available and upon the request of the other Party, each Party
shall cooperate to ensure that its trunk groups are configured utilizing
the B8ZS ESF protocol for 64 kbps clear channel transmission to allow for
ISDN interoperability between the Parties' respective networks.
XIV. INSTALLATION, MAINTENANCE, TESTING AND REPAIR. SWBT's standard intervals
for Feature Group D Switched Exchange Access Services will be used for
Interconnection trunks as
107
specified in the most current SWBT Accessible Letter, currently SWA96-036,
dated April 15, 1996. The LSP shall meet the same intervals for comparable
installations, maintenance, joint testing, and repair of its facilities and
services associated with or used in conjunction with Interconnection or shall
notify SWBT of its inability to do so and will negotiate such intervals in good
faith.
108
SCENARIO 1
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM WITHOUT DIRECT END OFFICE,
ILEC OR IXC TRUNKING
[graphic]
TRAFFIC USE/MODIFIER DESCRIPTION
---------------------- -----------------------------------
1. DDJ INTRALATA AND LOCAL (SS7 SIGNALING)
2. TCJ INTRALATA AND LOCAL (SS7 SIGNALING)
3. TOCRJ MASS CALLING (MF SIGNALING)
4. DD800J INTRALATA 800 (MAXIMIZER 800)(SS7 SIGNALING) #
5. MDJ INTERLATA ONLY (MF SIGNALING) @
6. MDJ INTERLATA ONLY (SS7 SIGNALING)
7. ESJ EMERGENCY SERVICE (MF SIGNALING)
@ Required at the Dallas 4 ESS switch only for 10XXXX # cut through and
Feature Group B over D
# Required if SWBT does not perform the database query for the LSP
Revised 6/17/96
LSP1.AF3
109
SCENARIO 2
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM WITH SOME DIRECT END
OFFICE, ILEC AND IXC TRUNKING
[graphic]
TRAFFIC USE/MODIFIER DESCRIPTION
-------------------- -----------
1. IEJ LOCAL ONLY (SS7 SIGNALING)
2. IEJ LOCAL ONLY (SS7 SIGNALING)
3. DDJ INTRALATA AND LOCAL (SS7 SIGNALING)
4. TCJ INTRALATA AND LOCAL (SS7 SIGNALING)
5. TOCRJ MASS CALLING (MF SIGNALING)
6. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
7. MDJ INTERLATA ONLY (MF SIGNALING) @
8. MDJ INTERLATA ONLY (SS7 SIGNALING)
9. ESJ EMERGENCY SERVICE (MF SIGNALING)
@ Required at the Dallas 4 ESS switch only for 10XXXX # cut
through and Feature Group B over D
# Required if SWBT does not perform the database query for
the LSPp
Revised 6/17/96
LSP2.AF3
110
SCENARIO 3
SINGLE RATE AREA - SEPARATE SWBT LOCAL AND ACCESS TANDEMS WITHOUT DIRECT END
OFFICE, ILEC OR IXC TRUNKING
[Graphic]
TRAFFIC USE/MODIFIER DESCRIPTION
-------------------- -----------
1. TOJ LOCAL ONLY (SS7 SIGNALING)
2. TGJ LOCAL ONLY (SS7 SIGNALING)
3. TOCRJ MASS CALLING (MF SIGNALING)
4. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
5. DDJ INTRALATA ONLY (SS7 SIGNALING)
6. TCJ INTRALATA ONLY (SS7 SIGNALING)
7. MDJ INTERLATA ONLY (SS7 SIGNALING)
8. ESJ EMERGENCY SERVICE (MF SIGNALING)
# Required if SWBT does not perform the database query for
the LSP.
Revised 12/30/96
LSP3.AF3
111
SCENARIO 4
SINGLE RATE AREA - SEPARATE SWBT LOCAL AND ACCESS TANDEMS WITH SOME DIRECT END
OFFICE, ILEC AND IXC TRUNKING
[Graphic]
TRAFFIC USE/MODIFIER DESCRIPTION
-------------------- -----------
1. IEJ LOCAL ONLY (SS7 SIGNALING)
2. IEJ LOCAL ONLY (SS7 SIGNALING)
3. TOJ LOCAL ONLY (SS7 SIGNALING)
4. TGJ LOCAL ONLY (SS7 SIGNALING)
5. TOCRJ MASS CALLING (MF SIGNALING)
6. DD800J INTRALATA 800 (MAXIMIZER 800) (SS7 SIGNALING) #
7. DDJ INTRALATA ONLY (SS7 SIGNALING)
8. TCJ INTRALATA ONLY (SS7 SIGNALING)
9. MDJ INTERLATA ONLY (SS7 SIGNALING)
10. ESJ EMERGENCY SERVICE (MF SIGNALING)
# Required if SWBT does not perform database query for
the LSP.
Revised 12/30/96
LSP4.AF3
112
SCENARIO 5
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS XXXXX WHERE SWBT IS THE OPERATOR
SERVICES PROVIDER FOR THE LSP
[Graphic]
TRAFFIC USE/MODIFIER DESCRIPTION
-------------------- -----------
1. VRJ BUSY LINE VERIFICATION (MF SIGNALING) #
2. DAJ or DACCJ DIRECTORY ASSISTANCE or DIRECTORY
ASSISTANCE CALL COMPLETION (MF SIGNALING,
OPERATOR SERVICES SIGNALING)
3. ETCM2J 0-, 0+ COMBINED COIN AND NONCOIN (MF
SIGNALING, OPERATOR SERVICES SIGNALING)
4. ETCMFJ 0-, 0+, DA, DACC COMBINED COIN AND NONCOIN
(MF SIGNALING, OPERATOR SERVICES SIGNALING)
# Busy Line Verification is sometimes trunked out from the TOPS Tandem
rather than the Access Tandem.
Revised 1/7/97
LSP5.AF3
113
SCENARIO 6
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS XXXXX WHERE SWBT IS NOT THE
OPERATOR SERVICES PROVIDER FOR THE LSP
121 INWARD OPERATOR ASSISTANCE
[Graphic]
Note: This scenario would use existing Interexchange Carrier Network.
Revised 6/17/96
LSP6.AF3
114
SCENARIO 7
SINGLE RATE AREA - COMBINED SWBT LOCAL/ACCESS TANDEM WHERE SWBT IS NOT THE
OPERATOR SERVICES PROVIDER FOR THE LSP AND THE LSP'S SWITCH IS THE DESIGNATE
OPERATOR SWITCH (TTC) FOR 121 INWARD ASSISTANCE
[Graphic]
TRAFFIC USE/MODIFIER DESCRIPTION
---------------------- -----------------------------------
1. OAJ ACCESS TO INWARD OPERATOR (121) (MF
SIGNALING)
Revised 6/17/96
LSP7.AF3
115
APPENDIX LIDB
AGREEMENT FOR THE PROVISION OF DATA BASE ADMINISTRATION
AND
LINE INFORMATION DATA BASE (LIDB) STORAGE
This Appendix, between SWBT and LSP sets forth the terms and conditions upon
which SWBT will provide data base administration to store LSP's line/billing
records in SWBT's Line Information Data Base (LIDB).
WHEREAS, SWBT owns and maintains a Line Validation Administration System (LVAS)
that provides facilities for adding, deleting, and changing information in
LIDB; and
WHEREAS, SWBT maintains LIDB for various purposes, including the validation of
alternately billed service (ABS) requests and the provision of other services;
and
WHEREAS, LSP desires to have SWBT use LVAS to administer LSP's line information
cords for the provision of services set forth in the exhibits attached to this
Appendix; and
WHEREAS, SWBT is willing to provide, where equipment, processing capability and
hardware configurations permit, such LVAS services and LIDB storage for LSP;
and
WHEREAS, SWBT owns and maintains a Sleuth System that provides facilities for
ABS fraud monitoring; and
WHEREAS, LSP desires SWBT to use its Sleuth System for ABS fraud monitoring of
its telecommunications traffic.
NOW, THEREFORE, in consideration of the mutual promises and undertakings made,
the parties agree as follows:
1. DEFINITIONS
As used herein and for the purpose of this Appendix, the following terms
shall have the meanings set forth below:
A. Alternate Billing Services (ABS) - A service that allows end
users to xxxx calls to accounts that may not be associated with the
originating line. There are three types of ABS calls: calling
card, collect and third number billed calls.
B. Billed Number Screening (BNS) - A process which utilizes a
database to determine specific characteristics and/or end user
preferences with respect to a billed number.
116
C. Calling Card Service (CCS) - A service which enables a
calling customer to xxxx a telephone call to a calling card number
with or without the help of an operator.
D. Data Base - An integrated collection of related data. In the
case of the LIDB, the data base is the line number and related line
information.
E. Data Base Administration Center (DBAC) - The LIDB input
center where the LVAS facility and administrative personnel are
currently located.
F. Exchange - For the purpose of this Appendix, a specific
NPA-NXX combination.
G. Group Record - Information in LIDB or LVAS that is common to
all lines or billing records in an NPA-NXX or NPA-XXX.
H. LIDB Editor - A database editor located at the SCP where LIDB
resides. LIDB ditor provides emergency access to LIDB that bypasses
the service management system for LIDB.
I. Line Validation Administration System (LVAS) - An off-line
administrative system, used by SWBT to add, delete and change
information in LIDB.
J. Line Information Data Base (LIDB) - The line information
database, which is an ANSI SS7 database system, functions as a
centralized repository for data storage and retrieval. LIDB
supports validation and recording of ABS requests. LIDB also
supports storage, retrieval and recording capabilities for other
information that can be associated with an end user's line.
Examples of such information are, or are expected to be, originating
screening information, ZIP code data and calling name.
K. Line Record - Information in LIDB or LVAS that is specific to
a single telephone number or special billing number.
L. Personal Identification Number (PIN) - A confidential four
digit code number provided to a calling card customer to prevent
unauthorized use of his/her calling card number. The PIN is stored
in the LIDB for those line numbers that have an associated calling
card.
M. Response - A single response in a set of predefined expected
responses to a request for information contained in a query from a
computer processor.
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N. Toll Billing Exception (TBE) - A LIDB option that allows end
users to restrict third number billing or collect calls to their
lines.
O. Service Management System (SMS) - An off-line system used to
access, create, modify, or update information in LIDB. For the
purposes of this appendix, the SMS for LIDB is LVAS.
P. Sleuth - An off-line administration system that SWBT uses to
monitor suspected occurrences of ABS-related fraud. Sleuth uses a
systematic pattern analysis of query message data to identify
potential incidences requiring fraud investigation. Detection
parameters are based upon vendor recommendations and SWBT's analysis
of collected data and are subject to change from time to time.
Q. Special Billing Number (SBN) Account Groups - Line records in
LIDB that are based on an NPA-XXX numbering format. NPA-XXX
numbering formats are similar to NPA-NXX formats except that the
fourth digit of an NPA-XXX line record is either a zero (0) or a one
(1).
R. Tape Load Facility - A separate data entry point at the SCP
where LIDB resides. The Tape Load Facility provides direct access
to LIDB for data administration that bypasses the service management
system for SWBT's LIDB.
S. Translation Type - A code in the Signaling Connection Control
Point (SCCP) of the SS7 signaling message. Translation Types are
used for routing LIDB queries. Signal Transfer Points (STPs) use
Translation Types to identify the routing table used to route a LIDB
query. All LIDB queries against the same exchange and Translation
Type are routed to the same LIDB.
2. General Description
A. SWBT's LIDB is connected directly to a service management
system (i.e., LVAS), a database editor (i.e., LIDB Editor), and a
tape load facility. Each of these facilities, processes, or
systems, provide SWBT with the capability of creating, modifying,
changing, or deleting, line/billing records in LIDB. SWBT's LIDB is
also connected directly to an adjunct fraud monitoring system (i.e.,
Sleuth).
B. SWBT will provide LSP with access to LVAS, LIDB Editor, and
tape load facility as set forth in this Appendix and the Exhibit or
Exhibits attached hereto. SWBT warrants that the manner in which it
provides such access to LSP will be equivalent to the manner in
which SWBT provides such access to itself.
118
C. SWBT will also provide LSP with fraud alerts from Sleuth as
set forth in this Appendix and in Exhibit IV (Sleuth). SWBT
warrants that it will provide fraud alerts to LSP using the same
fraud monitoring parameters as SWBT uses for itself.
D. From time-to-tome, SWBT enhances its LIDB to create new
services and/or LIDB functionalities. Such enhancements may involve
the creation of new line-level or group-level data elements in LIDB.
SWBT will coordinate with LSP to provide LSP with the opportunity
to update its data concurrent with SWBT's updates of SWBT's own
data. Both parties understand and agree that some LIDB enhancements
will require LSP to update its line/billing records with new or
different information.
E. Charges for the provisioning of Data Base Administration and
LIDB Storage are set forth in Exhibit II (Basis of Compensation).
3. Service Description
3.1 LVAS
LVAS provides LSP with the capability to access, create, modify or
update information in LIDB. LVAS has two electronic interfaces.
These interfaces are the Service Order Entry Interface and the
Interactive Interface.
3.1.1 Service Order Entry Interface
(A) The Service Order Entry Interface
provides LSP with unbundled access to SWBT's LVAS that
is equivalent to SWBT's own service order entry process
to LVAS. Service Order Entry Interface allows LSP to
electronically transmit properly formatted records from
LSP's service order process into LVAS.
(B) LSP's access to the Service Order
Entry Interface will be through a remote access facility
(RAF). The RAF will provide SWBT with a security
gateway for LSP access to the Service Order Entry
Interface. The RAF will verify the validity of LSP's
transmissions and limit LSP's access to SWBT's Service
Order Entry Interface to LVAS. LSP does not gain access
to any other SMS, interface, database, or operations
support system through this Appendix.
(C) SWBT will provide LSP with the file
transfer protocol specifications LSP will use to
administer LSP's data over the
119
Service Order Entry Interface. LSP acknowledges that
transmission in such specified protocol is necessary for SWBT
to provide LSP with Data Base Administration and Storage.
(D) LSP can choose the Service Order Entry Interface as its
only interface to LVAS and LIDB or the LSP can choose to
use this interface in conjunction with any other
interface that SWBT provides under this Appendix except
the Manual Interface.
(E) SWBT will provide LSP with SWBT-specific documentation
for properly formatting the records LSP will transmit
over the Service Order Entry Interface.
(F) LSP understands that its record access through the
Service Order Entry Interface will be limited to its own
line/billing records.
3.1.2 Interactive Interface
(A) The Interactive Interface provides LSP with unbundled
access to SWBT's LVAS that is equivalent to SWBT's access
at its LIDB DBAC. Interactive Interface provides LSP with
the ability to have its own personnel access LSP's
records via an application screen that is presented on a
computer monitor. Once LSP has accessed one of its
line/billing records, LSP can perform all of the data
administration tasks SWBT's LIDB DBAC personnel can
perform on SWBT line/billing records.
(B) SWBT will provide LSP with Interactive Interface through
a modem. LSP understands that its record access through
the Interactive Interface will be limited to its own
line/billing records.
(C) LSP will use hardware and software that is compatible
with LVAS hardware and software.
(D) LSP can choose to request the Interactive Interface as
its only interface to LVAS and LIDB or the LSP can choose
to use this interface in conjunction with any other
interface that SWBT provides under this Appendix except
the Manual Interface.
(E) SWBT will provide LSP with SWBT-specific documentation in
the form of screen prints and prints of help screens.
120
3.1.3 Manual Interface
(A) Manual Interface is available only if the LSP has 1,000
line/billing records or less. Manual Interface allows
LSP to fax updates to SWBT's LIDB DBAC. SWBT's LIDB DBAC
personnel will manually enter these faxed updates into
LVAS for LSP.
(B) Manual Interface is not available with any other
interface SWBT provides under this Appendix.
(C) LSP understands that its record access through the Manual
Interface will be limited to its own line/billing
records.
3.2 Tape Load Facility Interface
(A) Tape Load Facility Interface provides LSP with unbundled
access to SWBT's Tape Load Facility in the same manner
that SWBT accesses this facility. Tape Load Facility
Interface allows LSP to create and submit magnetic tapes
for input into LIDB.
(B) The Tape Load Facility Interface is not an interface to
LVAS. The Tape Load Facility Interface is an entry
point to LIDB at the SCP where LIDB resides.
(C) The Tape Load Facility Interface is available only when
the amount of information is too large for LVAS to
accommodate. Both parties agree that these situations
normally occur during the initial load of LSP's
information into LIDB or when LIDB is updated for a new
product. The Tape Load Facility Interface is not
available for ongoing updates of information. LSP may
request the Tape Load Facility Interface only when its
updates exceed 100,000 line/billing records over and
above the LSP's normal daily update processing.
(D) LSP will create its own tapes in formats specified in
GR-446-CORE, Issue 2, June 1994, as revised. Such tapes
will only include information associated with LSP's
line/billing records.
(E) LSP will deliver a separate set of tapes, each having
identical information to each SCP node on which LIDB
resides. SWBT will provide LSP with the name and
address of the SWBT employee designated to receive the
tapes at each location.
121
(F) In addition to the tapes LSP will create and deliver to
the SCP node locations, LSP shall deliver an additional
set of tapes to the LVAS System Administrator so that
SWBT can load LSP's updates into LVAS. LSP understand
that these additional tapes must contain information
identical to the tapes delivered to the SCP nodes, but
that the format will differ. SWBT shall provide LSP
SWBT-specific documentation for record formations of
these additional tapes. SWBT shall use these tapes to
create LSP records in LVAS that correspond with the
records being loaded into LIDB using the Tape Load
Facility Interface. SWBT shall provide LSP with the name
and address of the SWBT System Administrator to whom the
LVAS update tapes should be sent.
(G) SWBT and LSP shall negotiate mutually agreed upon dates
and times for tape loads of LSP data when such loads are
the result of an LSP request.
(H) LSP understands and agrees that its record access through
the Tape Load Facility Interface is only for LSP's own
line/billing records. LSP warrants that it shall not use
the Tape Load Facility Interface to modify any group
record. LSP further warrants that it shall not use the
Tape Load Facility Interface to modify any line/billing
record not belonging to LSP.
3.3 LIDB Editor Interface
(A) LIDB Editor Interface provides LSP with unbundled access
to SWBT's LIDB Editor equivalent to SWBT's manner of
access. LIDB Editor provides LSP with emergency access
to LIDB only when LVAS is unable to access LIDB or is
otherwise inoperable.
(B) LIDB Editor Interface is not an interface to LVAS. LIDB
Editor is an SCP tool accessible only by authorized SWBT
employees. LSP shall have access to SWBT employees
authorized to access LIDB Editor during the same times
and under the same conditions that SWBT has access to
LIDB Editor.
(C) LSP understands that its record access through the LIDB
Editor Interface is limited to its own line/billing
records.
3.4 Audits
SWBT shall provide LSP with access equivalent to SWBT's own
access to LVAS audit functionalities.
122
3.4.1 LIDB Audits
(A) This audit is between LVAS and LIDB. This audit
verifies that LVAS records match LIDB records. The LIDB
Audit is against all line records and group record
information in LVAS and LIDB, regardless of data
ownership.
(B) SWBT shall run the LIDB audit continuously throughout
each and every day.
(C) SWBT shall create a "variance file" of all LSP records
that fail the LIDB audit. LSP can access these files
through the Interactive Interface.
(D) LSP shall investigate accounts that fail the LIDB audit
and correct any discrepancies as set forth in paragraph
3(H). LSP shall correct all discrepancies using the
LVAS interface(s) LSP has requested under this Appendix.
3.4.2 Billing System Audit
(A) This type of audit is between LVAS and SWBT's billing
system(s). This audit verifies that LVAS records match
SWBT's billing system records.
(B) SWBT shall provide LSP with access equivalent to SWBT's
own access to the billing system audit functionality.
SWBT shall provide LSP with a file containing LSP
records in LIDB. LSP shall specify if the billing
system audit tape will be delivered by either magnetic
tape or electronically over the Service Order Entry
Interface.
(C) LSP shall audit its LIDB accounts against LSP's billing
system and correct any discrepancies as set forth in
paragraph 3(H). LSP shall correct all discrepancies
using the LVAS interface(s) LSP has requested under this
Appendix.
SWBT shall provide LSP scheduled and unscheduled billing
system audits as set forth below:
(1) Scheduled Audits
123
SWBT shall provide LSP with a billing system
audit file twice per year. Such audit files will
represent LSP's entire data store in LVAS. The
Parties shall mutually agree upon the dates such
audit files will be provided.
(2) Unscheduled Audits
LSP can request additional audit files and SWBT
will work cooperatively to accommodate all
reasonable LSP requests for such additional audit
files. Charges for additional audit files shall
apply as set forth in Exhibit II (Basis for
Compensation).
3.5 Sleuth
(A) Sleuth notification provides LSP with
Sleuth alert messages. Sleuth alert messages indicate
potential incidences of ABS-related fraud for
investigation.
(B) Sleuth historical reports are
available to LSP as set forth in Exhibit IV (Sleuth).
3. Manner of Provisioning
(A) SWBT shall provide to LSP, on request, SWBT-specific
documentation regarding record formatting and associated hardware
requirements for LSP to access each of the interfaces SWBT provides
for LIDB data administration.
(B) LSP shall obtain, at its own expense, all necessary
documentation produced by non-SWBT entities such as Bellcore.
(C) Magnetic tapes submitted by LSP must conform to the hardware
specifications of each SCP node where LIDB resides. This includes
9-track and 8mm tapes as well as other site-specific limitations.
SWBT shall provide LSP with all magnetic tape hardware requirements
upon request. LSP shall create the magnetic tapes its submits for
input into LIDB and LVAS over the tape load interface.
(D) SWBT shall input information provided by LSP into LIDB for
the NPA-NXXs and/or NPA-RAOs set forth in Exhibit I, EXCHANGES TO BE
ADMINISTERED, attached hereto and made a part hereof. LSP shall
provide all information needed by SWBT to support the services being
requested. This information may include, but is not limited to,
Calling Card Service information, Toll Xxxx Exception information
(such as restrictions on collect
124
and third number billing), class of service information, originating line
number screening information, ZIP code information, and calling name
information.
(E) LSP shall furnish, prior to the initial LVAS load, and as
requested by SWBT thereafter, the following forecast data:
- the number of working lines per account group
- the number of working line numbers to be established
- the average number of monthly changes to these records
- the number of busy hour queries, by query type
- the number of annual queries by query type
If SWBT, at its discretion, determines that it lacks adequate
storage, or processing capability, prior to the initial loading of
LSP information, SWBT shall notify LSP of its intent to not provide
to LSP the Services under this Appendix and this Appendix will be
void.
(F) LSP shall furnish all line records and group records in a
format required by SWBT to establish records in LIDB for all working
line numbers, not just line numbers associated with calling card PIN
or Toll Billing Exceptions (TBE).
(G) LSP acknowledges that SWBT's LIDB is accessible by many
telecommunications companies and that these telecommunications
companies expect a high degree of accuracy in the response
information provided to their queries. LSP shall administer its
data in such a manner that SWBT's accuracy of response information
is not adversely impacted.
(H) LSP shall verify to SWBT the line information data residing
in LVAS by reviewing the listing of line information data provided
by SWBT's billing system audit file. LSP shall provide to SWBT all
additions, deletions, and corrections resulting from its
verification on, or before, the fourteenth business day following
its receipt of line information verification reports produced by
SWBT for audit processes.
(I) SWBT shall provide the functionality needed to perform
certain query/response functions on a call-by-call basis for the
line/billing records of LSP that reside in SWBT's LIDB. Those
query/response functions SWBT will perform are set forth in the
Exhibits.
(J) With respect to all matters covered by this Appendix, each
Party shall adopt and comply with SWBT standard operating methods
and procedures and shall observe the rules and regulations which
cover the administration of LVAS service and the Sleuth System, as
set forth in SWBT practices. The Parties acknowledge that those
practices may be changed by SWBT from time to time.
125
(K) Administration of the SCP on which LIDB resides, as well as
any system or query processing logic that applies to all data
resident on SWBT's LIDB is, and remains, the responsibility of SWBT.
LSP acknowledges that SWBT, in its role as system administrator,
may need to access any record in LIDB, including any such records of
LSP. SWBT shall limit such access to those actions necessary to
ensure the successful operation and administration of SWBT's SCP and
LIDB.
(L) LSP acknowledges that SWBT shall, in its sole discretion,
allow or negotiate any access to SWBT's LIDB. LSP does not gain any
ability, by virtue of this Appendix, to determine which
telecommunications companies are allowed to access information in
SWBT's LIDB. LSP acknowledges that when SWBT allows a query
originator to access SWBT data in SWBT's LIDB, such query
originators shall also have access to LSP's data that is also stored
in SWBT's LIDB.
(M) LSP acknowledges that SWBT does not have data screening
capability in LIDB. Data Screening is the ability of a LIDB owner
to deny complete or partial access to LIDB data or processes.
4. Billing
Compensation to SWBT for data storage and administration service and
Sleuth services shall be based upon the rates set forth in Exhibit II
(Basis of Compensation), attached hereto and made a part hereof. These
rates will apply for one (1) year from the service effective date for
each exchange. After one (1) year, SWBT may change the rates upon
seventy-five (75) days' notice. SWBT may first give such notice
seventy-five days before the end of the first year.
4.1 SWBT Responsibilities
(A) SWBT shall determine, for billing purposes, the
number of access lines that are administered for each NPA-NXX
or NPA-XXX for which SWBT performs the database administration
function on behalf of LSP. SWBT shall quantify access lines
monthly.
(B) SWBT shall provide, upon written request, such
data as is reasonably necessary to verify billing charges for
data base administration update functions. SWBT shall provide
this information in standard SWBT LVAS report formats.
(C) SWBT shall provide such data, as is reasonably
necessary, to enable the independent Billing Information
Systems (IBIS) billing statements to be
126
substantiated for query volumes of LSP line/billing records that
reside in SWBT's LIDB. SWBT shall provide this data to LSP in
standard Exchange Message Record (EMR) format.
4.2 LSP Responsibilities
(A) LSP shall pay SWBT the amounts billed for the
services rendered.
(B) LSP shall xxxx the appropriate charges to end
users, on behalf of third parties who query LIDB and receive a
response verifying the end user's willingness to accept the
charges for the underlying call.
(C) LSP shall provide to third parties, that query
LIDB and receive a response verifying an end user's
willingness to accept charges of services supported by LIDB,
all necessary billing information needed by the third party to
xxxx for the services provided.
4.3 Compensation for Data Access
(A) Subject to the limitations in (B) below, SWBT
shall compensate LSP for queries against the data LSP stores
in SWBT's LIDB. Queries by SWBT and LSP against the data LSP
stores in SWBT's LIDB shall be included in the count of
queries for which LSP will be compensated. SWBT shall
compensate LSP by paying a percentage of the amounts SWBT
billed, or would have billed, for each query. LSP
acknowledges that the amount SWBT bills for LIDB queries
against LSP's data may differ by query type, by query
originator, and/or may change over time. The percentage SWBT
will use to calculate such credits is set forth in Exhibit II
(Basis of Compensation).
(B) LSP acknowledges that SWBT's ability to provide
such credit is based upon SWBT's ability to identify account
ownership in LIDB. LSP acknowledges that LIDB currently
identifies account ownership only at the level of the group
record (i.e., NPA-NXX or NPA-XXX). LSP further agrees that
SWBT will not provide such credit for LSP accounts that reside
in group records that also contain SWBT or other data owner
accounts. SWBT agrees to work with its LIDB and switch
vendors to attempt to develop the capabilities for SWBT to
identify, and record for billing, the service provider of
individual line/billing records. SWBT shall provide LSP
compensation if SWBT implements such capabilities in its
network.
5. Liability
127
(A) SWBT shall not be liable for any losses or damages arising
out of errors, interruptions, defects, failures, or malfunction of
LVAS, including any and all associated equipment and data processing
systems, except such losses or damages caused by the sole negligence
of SWBT. Any losses or damages for which SWBT is held liable under
this Appendix shall in no event exceed the amount of charges made
for LVAS during the period beginning at the time SWBT receives
notice of the error, interruption, defect, failure or malfunction to
the time service is restored.
(B) SWBT shall not be liable for any losses or damages arising
out of SWBT's administration of Sleuth.
(C) SWBT SHALL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RESULTING
FROM, OR ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT.
(D) LSP agrees to release, indemnify, defend, and hold harmless
SWBT from any and all claims, demands, or suits brought by a third
party against SWBT, directly or indirectly, arising out of SWBT's
provision of service under this Appendix. This provision shall not
apply to any losses, damages or other liability for which SWBT is
found liable as a result of its sole negligence.
6. Disclaimer of Warranties
SWBT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO LVAS SERVICE,
LIDB OR THE SLEUTH SYSTEM. ADDITIONALLY, SOUTHWESTERN XXXX ASSUMES NO
RESPONSIBILITY WITH REGARD TO THE CORRECTNESS OF THE DATA SUPPLIED BY LSP
WHEN THIS DATA IS ACCESSED AND USED BY A THIRD PARTY.
128
APPENDIX LIDB
EXHIBIT I
EXCHANGES TO BE ADMINISTERED
SWBT shall provide service management system and other interface service
capabilities to LSP as set forth in this Appendix and attached Exhibit or
Exhibits for the following LSP exchanges:
EXCHANGE NAME NPA NXX NPA-XXX
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
_________________ __________________ __________________
(Attach additional copies as needed)
129
APPENDIX LIDB
EXHIBIT II
BASIS OF COMPENSATION
1. COMPENSATION:
All rates and charges contained in this section are applicable in all
regulatory jurisdictions.
2. RATES AND CHARGES
Manual Interface Rate Per Initial Load
---------------------
(a) Initial Load
(1) per initial load $372.00
(2) per 100 line records
loaded $55.00
(b) Ongoing Updates Rate Per Month
--------------
(1) per month $51.00
(2) per 100 line records
stored in LIDB $ 3.75
130
APPENDIX LIDB
EXHIBIT III
CALLING CARD AND BILLED NUMBER SCREENING VALIDATION
(A) SWBT shall provide the functionality needed to perform the following
query/response functions, on a call-by-call basis, for the line/billing
records residing in SWBT's LIDB to:
1. Validate a 14-digit billing number where the
first 10 digits are a telephone number or a special billing
number assigned and the last four digits (PIN) are a security
code assignment.
2. Determine whether the billed line automatically
rejects, accepts, or requires verification of certain calls
billed as collect or third number.
3. Determine whether the billed line is a public
telephone number using the Class of Service information in the
LIDB.
B. LSP shall xxxx the appropriate charges to end users, on behalf of third
parties who query LIDB and receive a response validating the end user's
willingness to accept the charges for the underlying call.
Approved and executed the ________________________ day of ___________, 19__.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN XXXX TELEPHONE COMPANY
By_____________________________ By_____________________________
Title____________________________ Title____________________________
Date____________________________ Date____________________________
131
APPENDIX LIDB
EXHIBIT IV
SLEUTH
(A) SWBT shall provide LSP with an alert notification, by fax, or another
mutually agreed upon format, when SWBT's Sleuth system indicates the
probability of a fraud incidence. SWBT will use the same criteria to
determine fraud alerts for LSP as SWBT uses for its own accounts.
(B) Sleuth alert messages have four levels of priority. These levels are
low, medium, high and urgent. Sleuth delivers alert messages to a queue
in the Sleuth DBAC in priority order. Urgent alerts are prioritized
first, followed by high, medium and low alerts (in that order).
(C) SWBT's Sleuth investigators can access alerts only in the order the
alerts appear in the queue. Low alerts almost never see investigator
treatment. However, when Sleuth encounters a number of low priority
alerts on the same account, Sleuth may upgrade the alert's status to a
higher priority status.
(D) When a Sleuth investigator determines that an urgent, high, or medium
priority alert is for an LSP account, the Sleuth investigator will print
the alert for the queue and fax the alert to the LSP. Sleuth alerts only
identify potential occurrences of fraud. The LSP receiving Sleuth alerts
will need to perform its own investigations to determine whether a fraud
situation actually exists. The LSP will also need to determine what, it
any action should it take as a result of a Sleuth alert.
(E) SWBT's hours of operation for Sleuth are seven days a week, twenty-four
hours per day (7X24). LSP shall provide SWBT with a contact name and fax
number for SWBT to fax alerts from SWBT's Sleuth DBAC.
(F) SWBT shall provide LSP with a Sleuth contact name and number, including
fax number, for LSP to contact the Sleuth DBAC.
(G) For each alert notification SWBT provides to LSP, LSP may request a
corresponding 30-day historical report of ABS-related query processing.
LSP may request up to three reports per alert. The charge for each
historical report is set forth in Exhibit II (Basis of Compensation).
132
Approved and executed the ______________________ day of _________, 19__.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN XXXX TELEPHONE COMPANY
By_____________________________ By_____________________________
Title____________________________ Title____________________________
Date____________________________ Date____________________________
133
APPENDIX LIDB
EXHIBIT V
CNAM SERVICE QUERY SERVICE
Upon receipt of the line/billing information from LSP, in a format acceptable
to SWBT, SWBT will provide the functionality needed to perform the following
query/response functions, on a call-by-call basis, for the line/billing records
residing in SWBT's LIDB to identify the name associated with the line record.
Calling Name records are limited to fifteen characters. LSP is responsible for
providing all name truncations and/or abbreviations needed to limit a calling
name to 15 characters. LSP is also responsible for ensuring that its calling
name data does not contain obscenities in English or other languages. Upon
receipt of Calling Name data, in a format acceptable to SWBT, SWBT will provide
the query/response functions, on a call-by-call basis, for the line/billing
records residing in SWBT's LIDB to identify the name associated with the line
record.
CNAM Service Query is SWBT's service that allows customers to query SWBT's LIDB
for calling name information. Calling Name information means a
telecommunications company's records of all its subscribers' names associated
with one or more ten-digit telephone numbers assigned to the end user.
Approved and executed the _______________________ day of _________, 19__.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN XXXX TELEPHONE COMPANY
By_____________________________ By_____________________________
Title____________________________ Title____________________________
Date____________________________ Date____________________________
134
APPENDIX LIDB
EXHIBIT VI
SINGLE NUMBER SERVICE (SNS) QUERY SERVICE
Upon receipt of the line/billing information from LSP, in a format acceptable
to SWBT, SWBT shall provide the functionality needed to perform the
query/response functions, on a call-by-call basis, for the line/billing records
residing in SWBT's LIDB to identify the ZIP code associated with the line
record.
Approved and executed the ______________________ day of _________, 19__.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN XXXX TELEPHONE COMPANY
By_____________________________ By_____________________________
Title____________________________ Title____________________________
Date____________________________ Date____________________________
135
APPENDIX LIDB
EXHIBIT VII
ORIGINATING LINE NUMBER SCREENING (OLNS) QUERY
Upon receipt of the line/billing information for LSP, in a format acceptable to
SWBT, SWBT shall provide the functionality needed to perform the query/response
functions, on a call-by-call basis, for the line/billing records residing in
SWBT's LIDB to identify the originating line screening requirements of the line
record.
LSP shall ensure that its OLNS data complies with the definitions and record
formats set forth in GR-1149-CORE and GR-446-CORE.
Approved and executed the ________________________ day of __________, 19__.
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN XXXX TELEPHONE COMPANY
By_____________________________ By_____________________________
Title____________________________ Title____________________________
Date____________________________ Date____________________________
136
APPENDIX LIDB-V
PAGE 2 OF 14
APPENDIX LIDB VALIDATION SERVICE
WHEREAS, the Parties are interested in purchasing each other's LIDB
Validation Service (or equivalent service);
In consideration of the mutual promises contained herein, SWBT and LSP
agree as follows.
I. DEFINITIONS
A. A-links means a diverse pair of facilities connecting local
end office switching centers with Signaling Transfer Points.
B. Alternate Billing Service (ABS) means a service that allows
end users to xxxx calls to accounts that may not be associated
with the originating line. There are three types of ABS calls:
calling card, collect, and third number billed calls.
C. Billed Number Screening (BNS) means a validation of toll
billing exception (TBE) data and performance of public
telephone checks i.e., determining if a billed line is a
public (including those classified as semi-public) telephone
number.
D. Calling Card Service (CCS) means a service that enables a
calling customer to xxxx a telephone call to a calling card
number with or without the help of an operator.
E. Common Channel Signaling (CCS) Network means an out-of-band,
packet-switched, signaling network used to transport
supervision signals, control signals, and data messages.
Validation Queries and Response messages are transported
across the CCS network.
F. Data Base means an integrated collection of related data. In
the case of the LIDB, the data base is the line number and
related line information.
G. Data Owner means telecommunications companies that administer
their own validation data in a party's LIDB or LIDB-like
database.
H. Line Information Data Base (LIDB) means an ANSI SS7
call-related database system. LIDB functions as a centralized
repository for data storage and retrieval. SWBT's LIDB
supports validation of ABS calls as well as certain other
services.
I. Line Record means information in LIDB that is specific to a
single telephone number or special billing number.
J. Nonrecurring charges are one-time charges that apply for a
specific work activity (i.e., installation or change to an
existing service). Nonrecurring charges are
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APPENDIX LIDB-V
PAGE 3 OF 14
applicable for the establishment of LIDB Validation
Service, service rearrangements, and service order activity.
K. Originating Point Code (OPC) means a code assigned to identify
LSP's operator service system location(s).
L. Personal Identification Number (PIN) means a confidential
four-digit code number provided to a calling card customer to
prevent unauthorized use of his/her calling card number. The
PIN is stored in LIDB for those line numbers that have an
associated calling card.
M. Query means a message in American National Standards
Institute's (ANSI) standard SS7 signaling protocol which
represents a request to a LIDB or LIDB-like database for
Validation information.
N. Query Rate applies to each Validation Query that is received
at SWBT's LIDB for the validation of calling card and toll
billing exception data and performance of public telephone
checks; i.e., determining if a billed line is a public
(including those classified as semi public) telephone number.
O. Query Transport Rate applies to each Validation Query
transported from SWBT's STP to the SCP where LIDB resides and
back. SWBT and LSP shall list their STP locations in the
National Exchange Carrier Association, Inc. Tariff FCC No. 4.
P. Response means an SS7 message which, when appropriately
interpreted, represents an answer to a Query.
Q. Service Order Charge is a nonrecurring charge that applies,
per service order form, that specifies the LSP's originating
point codes (OPCs) of the LSP's designated operator service
systems sending the Validation Query or Queries.
R. Service Control Point (SCP) is a CCS network node where
Validation information resides.
S. Service Point (SP) means a CCS network interface element
capable of initiating and/or terminating SS7 messages from
an end office.
T. Service Rearrangements are changes to existing services which
do not result in changes to previously established OPCs.
U. Service Switching Point (SSP) means the software capability
within a switching point that provides the SP with SS7 message
preparation/interpretation capability plus SS7
transmission/reception access ability.
V. Signaling System 7 (SS7) means the signaling protocol used by
the CCS network.
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W. Signaling Transfer Point (STP) is the point where a Party
interconnects with a CCS/SS7 network. In order to connect to
SWBT's SS7 network, LSP or a third party initiating LSP's
Validation Queries must connect with an SWBT STP in order to
connect to SWBT's SCP.
X. Special Billing Number means line records in LIDB that are
based on an NPA-XXX numbering format. NPA-XXX numbering
formats are similar to NPA-NXX formats except that the fourth
digit of an NPA-XXX line record is either a zero (0) or a one
(1).
Y. Toll Billing Exception (TBE) Service means a service that
allows end users to restrict third number billing or collect
calls to their lines.
Z. Validation information means Data Owners' records of all their
Calling Card Service and Toll Billing Exception Service.
II. DESCRIPTION OF SERVICE
A. SWBT shall provide LSP access to Validation information
whenever LSP initiates a query from an SSP for Validation
information available in SWBT's LIDB.
B. All LSP Queries to SWBT's LIDB shall use a translations type
of 253 and a subsystem number in the calling party address
field that is mutually agreed upon by the Parties. LSP
acknowledges that such subsystem number and translation type
values are necessary for SWBT to properly process Validation
Queries to its LIDB.
C. LSP warrants SWBT that LSP shall send Queries conforming to
the ANSI approved standards for SS7 protocol and pursuant to
the specification standards documents identified in Exhibit A
attached hereto and incorporated by reference. Both Parties
acknowledge that transmission in said protocol is necessary
for each party to provision Validation Service (or the
equivalent thereof). Both Parties warrant that they shall send
SS7 Messages that comply with ANSI approved standards for SS7
protocol and pursuant to the specification standards documents
identified in Exhibit A. Each Party reserves the right to
modify its network pursuant to other specifications standards,
which may include Bellcore Specifications defining specific
service applications, message types and formats, that may
become necessary to meet the prevailing demands within the
U.S. telecommunications industry. All such changes shall be
announced a minimum of one hundred eighty (180) days in
advance of implementation through industry standard
procedures. Each Party will work cooperatively to coordinate
any necessary changes.
D. LSP acknowledges that CCS/SS7 network overload due to
extraordinary volumes
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APPENDIX LIDB-V
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of Queries and/or other SS7 network messages can and will have
a detrimental effect on the performance of SWBT's CCS/SS7
network. LSP further agrees that SWBT, in its sole discretion,
shall employ certain automatic and/or manual overload controls
within SWBT's CCS/SS7 network to guard against these
detrimental effects. SWBT shall report to LSP any instances
where overload controls are invoked due to LSP's CCS/SS7
network and LSP agrees in such cases to take immediate
corrective actions as are necessary to cure the conditions
causing the overload situation.
E. Prior to SWBT initiating service under this Appendix, LSP
shall provide an initial forecast of busy hour Query volumes.
If, prior to the establishment of a mutually agreeable service
effective date, in writing, SWBT, at its sole discretion,
determines that it lacks adequate processing capability to
provide Validation Service to LSP, SWBT shall notify LSP of
SWBT's intent not to provide the services under this Appendix
and this Appendix will be void and have no further effect.
F. LSP shall update its busy hour forecast for each upcoming
calendar year (January - December) by October 1 of the
preceding year. LSP shall provide such updates each year for
the first three (3) years of this Appendix.
G. SWBT will perform testing of the LIDB Validation Service in
conjunction with CCS/SS7 Interconnection Service as outlined
in Bellcore Technical References TR-NWT-000954, TR-TSV-000905,
and TP 76638.
H. SWBT supports the performance standards as defined in Section
7 of TR- TSV-000905. The overall end-to-end CCS/SS7 network
objective is less than ten minutes unavailability per year
from any Signal Point (SP) to any other SP. The performance
objective for any single SP, including a Service Control Point
(SCP), is less than three minutes unavailability per year. The
combined link set from the SCP to the Signal Transfer Point
(STP) has a performance objective of less than two minutes
unavailability per year.
I. SWBT's LIDB Validation Service system downtime will be less
than twelve hours per year. The response time for a Query,
from switch transmission to reception, should not exceed one
second for ninety-nine (99) percent of all Queries.
J. SWBT shall administer its LIDB to provide acceptable service
levels to all customers of SWBT's LIDB Validation Service.
During periods of LIDB system congestion, SWBT will utilize an
automatic code gapping procedure to control such congestion.
The automatic code gapping procedure will tell LSP's switch
the gap (how long LSP's switch should wait before sending
another query) and the duration (how long the switch should
continue to perform gapping). For example, during an overload
condition, the automatic code gapping procedure
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APPENDIX LIDB-V
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will tell SWBT's LIDB when to begin to drop one out of three
queries received. This code gapping procedure will be applied
uniformly to all users of SWBT's LIDB Validation Service. SWBT
maintains the right to invoke manual intervention of the
automatic code gapping procedure to preserve the integrity of
its network.
K. LSP agrees that network overload due to extraordinary volumes
of Queries and/or other SS7 network messages can and will have
a detrimental effect on the performance of SWBT's network and
its LIDB Validation Service. LSP further agrees to take
immediate, corrective actions as are necessary to cure the
conditions causing the overload situation.
L. All access by LSP to SWBT's LIDB shall occur through SWBT's
regional STP as designated by SWBT.
M. SWBT's LIDB shall contain a record for every SWBT working line
number and Special Billing Number served by SWBT. Other
telecommunications companies, including LSP, may also store
their data in SWBT's LIDB. SWBT shall request such
telecommunications companies to also provide this data as
well.
N. SWBT shall update the LIDB information; e.g., add, delete, and
modify customer accounts as customers move, become delinquent
on their account, or order new service, on a daily basis. SWBT
shall request other Data Owners to provide such updates in
like time.
O. SWBT has procedures in place to deactivate billing validation
data in the event that such data is being used fraudulently or
in the event end users exceed SWBT-defined limits on toll
charges. SWBT shall update SWBT-issued calling cards that
SWBT suspects of being fraudulently used or exceeding
SWBT-defined toll limits seven (7) days a week, 24 hours a
day.
P. SWBT's LIDB shall receive and respond to all Calling Card
Service and Billed Number Screening queries, including SWBT's
and LSP's queries, as defined in Bellcore publications
TR-NWT-000246, FR-NWT-000271, TR-TSV-000905, TR-NWT-000954 and
SWBT's publication TP 6638. These procedures shall be applied
uniformly to all users of SWBT's LIDB Validation Service.
Q. SWBT's LIDB Validation Service shall provide the following
functions on a per query basis:
- validation of a telecommunications calling card
account number stored in LIDB;
- determination of whether the billed line has decided
in advance to reject certain calls billed as collect
or to a third number; and
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- determination of billed line as a public (including
those classified as semi public) or nonworking
telephone number.
R. SWBT provides LIDB Validation Service as set forth in this
Appendix only as such service is used for LSP's activities as
a local service provider in SWBT's traditional serving areas
in the states of Arkansas, Kansas, Missouri, Oklahoma, and
Texas. SWBT provides a LIDB Validation Service for
interexchange carriers, operator service providers, and other
telecommunications companies under effective tariffs. LSP
agrees that any other use of SWBT's LIDB for the provision of
LIDB Validation Service by LSP, including, but not limited to,
when LSP acts as an LSP outside of SWBT's traditional serving
areas in the states of Arkansas, Kansas, Missouri, Oklahoma,
and Texas, and/or acts as an operator service provider to
other LSPs, local exchange companies, or any other
telecommunications company, and/or acts as an interexchange
carrier, will be pursuant to the terms, conditions, rates, and
charges of SWBT's effective tariffs, as revised, for LIDB
Validation Service.
III. PRICE AND PAYMENT
A. LSP shall pay SWBT a Validation Query rate and a Query
Transport Rate for each Query initiated into SWBT's LIDB.
These rates are set forth in Exhibit I (Basis of
Compensation), which is attached hereto and incorporated by
reference.
B. LSP shall pay a Nonrecurring Charge for each request for
establishment or change of existing LIDB Validation Service.
The LIDB Validation Service Establishment Charge applies per
originating point code per request and is set forth in Exhibit
I (Basis of Compensation).
C. LSP shall pay a Service Order Charge for each request for
service order activity. The Service Order Charge is set forth
in Exhibit I (Basis of Compensation).
D. Payment to SWBT for LIDB Validation Service shall be based
upon the rates set forth in Exhibit I (Basis of Compensation),
attached hereto and made a part thereof. These rates and
charges will apply for one (1) year from the service effective
date for each exchange. After one (1) year, SWBT may change
the rates upon sixty (60) days' notice. SWBT may first give
such notice sixty (60) days before the end of the first year.
E. SWBT shall record usage information for LSP's Validation
Queries terminating to SWBT's LIDB. SWBT shall use its SCPs as
the source of usage data. SWBT shall aggregate usage by the
point code of the Query-originating SSP.
F. Based upon the data identified in SubSection 3.E of this
Appendix, SWBT shall xxxx LSP for its Validation Queries on a
monthly basis. The xxxx will be issued by
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the fifteenth day of each month, and LSP shall pay the xxxx
within thirty (30) days of the xxxx issue date. LSP shall pay
late payment charges as applicable and as described in SWBT's
Tariff FCC No. 73.
G. SWBT shall provide sufficient information with the xxxx to
enable LSP to determine how the billed amount was calculated.
H. Depending on LSP's choice of method for transporting its
Queries and Responses, LSP may be required to purchase certain
other services, especially services that may be provided
pursuant to effective tariffs. In this event the prices,
terms, conditions, and billing for such services will be
specified in the applicable tariff(s) and this Appendix shall
not be construed to circumvent the prices, terms, conditions,
or billing as specified in the applicable tariff(s).
I. If there is a dispute associated with a monthly xxxx, the
disputing Party shall notify the other in writing within
ninety (90) calendar days of the date of said monthly xxxx or
the dispute shall be waived. Each Party agrees that any amount
of any monthly xxxx that that Party disputes will be paid by
that Party according to the terms of Subsection III.F. above.
Any adjustments relating to a disputed amount shall be
reflected on the next monthly xxxx issued after resolution.
Any credit issued upon resolution of any dispute shall bear
interest at the rate specified in Subsection III.F. above,
payable on and as of the date the credit is issued. Parties
shall work cooperatively and use their best efforts to resolve
any disputes as quickly as possible.
J. SWBT shall treat changes in previously established OPCs as a
discontinuance of the existing LIDB Validation Service and
establishment of a new LIDB Validation Service and all
applicable Nonrecurring Charges shall be paid by LSP.
K. If LSP acts as a telecommunications company other than a local
service provider, or if LSP acts as a local service provider
in areas outside of SWBT's traditional service areas in the
states of Arkansas, Kansas, Missouri, Oklahoma, and Texas, LSP
shall designate those point codes from which it originates
LIDB Validation Service Queries as an LSP acting as a local
service provider within SWBT's traditional service areas in
the states of Arkansas, Kansas, Missouri, Oklahoma, and Texas
from those point codes which originate LIDB Validation Service
Queries for all other aspects of its business. If LSP uses the
same OPC to originate Queries for its operations as an LSP
within SWBT's traditional service areas in the states of
Arkansas, Kansas, Missouri, Oklahoma, and Texas as it does for
any other aspect of its business, then LSP shall provide SWBT
with a percentage of use factor that SWBT can use to apportion
LSP's traffic between SWBT's terms, conditions, rates and
charges under this Appendix and the terms, conditions, rates
and charges under SWBT's appropriate and effective tariff. LSP
shall provide this factor in a whole number between one (1)
and one hundred (100) to indicate the percentage of LIDB
Validation Services LSP originates as an
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PAGE 9 OF 14
LSP acting as a local service provider within SWBT's
traditional service area in the states of Arkansas, Kansas,
Missouri, Oklahoma, and Texas. A percentage of use factor of 1
(one) indicates that one percent of LSP's LIDB Validation
Service Queries originate as an LSP acting as a local service
provider within SWBT's traditional service areas in the states
of Arkansas, Kansas, Missouri, Oklahoma, and Texas. A
percentage of use factor of one hundred (100) indicates that
one hundred percent of LSP's LIDB Validation Service Queries
is from LSP acting as a local service provider within SWBT's
traditional service area in the states of Arkansas, Kansas,
Missouri, Oklahoma, and Texas.
L. Such percentage of use factors will be provided by LSP on the
LIDB Access Service Order Form used to establish the service.
All updates to this factor will provided via a letter. If LSP
does not furnish a percentage of usage factor, LSP agrees that
SWBT will apply a percentage of usage factor of one percent
(1%).
M. LSP shall update its percentage of use factors on a quarterly
basis. Effective on the first of January, April, July and
October of each year, LSP shall forward to SWBT, to be
received no later than fifteen (15) business days after the
first of each such month, a revised report showing the
percentage of use factors for the past three months ending the
last day of December, March, June, and September,
respectively, for each OPC from which LSP originates LIDB
Validation Service Queries. Both Parties agree that the
revised report will serve as the basis for the next three
months billing. Both Parties agree that no prorating or
backbilling will be done based on the report. SWBT shall use
the revised report to apportion usage rates, monthly rates,
and nonrecurring charges until a revised report is received
from LSP as set forth and agreed to herein.
N. SWBT may, upon written request by Certified U.S. mail (return
receipt requested), require LSP to provide call detail records
which will be audited to substantiate the projected percentage
of use factor provided by LSP. SWBT may request this detailed
information annually. If the audit results represent what SWBT
considers to be a substantial deviation from LSP's previously
reported percentage of use for the period upon which the audit
was based, and that deviation is not due to seasonal changes
or other identifiable reasons, LSP agrees to allow SWBT to
request such call detail records more than once annually. Both
parties agree that SWBT may make the call detail records
available to an independent auditor or to SWBT audit employees
within thirty (30) days of the request at an agreed upon
location during normal business hours.
O. If LSP fails to comply with SWBT's request for auditable call
detail records, SWBT may refuse additional applications for
service and/or refuse to complete any pending orders for
service for a period of thirty (30) days. If at the conclusion
of thirty (30) days, LSP still does not comply with this
request, SWBT may apply an assumed percentage of use factor of
one percent (1%).
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IV. OWNERSHIP OF VALIDATION INFORMATION
A. Telecommunications companies depositing information in SWBT's
LIDB may retain full and complete ownership and control over
such information. LSP obtains no ownership interest by virtue
of this Appendix.
B. Unless expressly authorized in writing by parties, LIDB
Validation Service is not to be used for purposes other than
those described in this Appendix. LSP may use LIDB Validation
Service for those functions only on a call-by-call basis. Data
accessed on LIDB may not be stored by LSP elsewhere for future
use.
C. Proprietary information residing in SWBT's LIDB is protected
from unauthorized access and LSP may not store such
information in any table or database for any reason. All
information related to alternate billing service is
proprietary. Examples of proprietary information are as
follows:
- Billed (Line/Regional Accounting Office (XXX)) Number
- PIN Number(s)
- Billed Number Screening (BNS) indicators
- Class of Service (also referred to as Service or
Equipment)
- Reports on LIDB usage
- Information related to billing for LIDB usage
- LIDB usage statistics.
D. LSP shall not copy, store, maintain, or create any table or
database of any kind after initiating, and based upon a
Response to, a Validation Query to SWBT's LIDB.
E. If LSP acts on behalf of other carriers, LSP shall prohibit
its Query- originating carrier customers from copying,
storing, maintaining, or creating any table or database of any
kind from any Response provided by SWBT after a Validation
Query to SWBT's LIDB.
F. SWBT will share end user information, pertinent to fraud
investigation, with LSP when validation queries for the
specific end user reaches SWBT's established fraud threshold
level. This fraud threshold level will be applied uniformly to
all end user information in SWBT's LIDB.
V. TERM AND TERMINATION
A. This Appendix shall become effective pursuant to Section XXVII
(Effective Date) of the Statement and shall continue for one
(1) year from the effective date of implementation of LIDB
Validation Service. Thereafter, this Appendix shall remain in
effect unless terminated by either party upon written notice
given sixty (60) days in advance of the termination date.
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PAGE 11 OF 14
B. If a Party materially fails to perform its obligations under
this Appendix, the other Party, after notifying the
non-performing Party of the failure to perform and allowing
that Party thirty (30) days after receipt of the notice to
cure such failure, may cancel this Appendix immediately upon
written notice.
C. Notwithstanding anything to the contrary in this Appendix, if
legal or regulatory decisions or rules compel SWBT or LSP to
terminate the Appendix, SWBT and LSP shall have no liability
to the other in connection with such termination.
VI. LIMITATION OF LIABILITY
A. A Party's sole and exclusive remedies against the other Party
for injury, loss or damage caused by or arising from anything
said, omitted or done in connection with this Appendix
regardless of the form of action, whither in contract or in
tort (including negligence or strict liability) shall be the
amount of actual direct damages and in no event shall exceed
the amount paid for LIDB Validation Service.
B. The remedies in Section VI.A. of this Appendix shall be
exclusive of all other remedies against a Party, its
affiliates, subsidiaries or parent corporation, (including
their directors, officers, employees or agents).
C. In no event shall a Party have any liability for system outage
or inaccessibility, or for losses arising from the
unauthorized use of the data by LIDB Validation Service Query
purchasers.
D. SWBT is furnishing access to its LIDB or LIDB-like database in
order to facilitate LSP's provision of Alternate Billing
Service to its end users, but not to insure against the risk
of completion of an ABS-related call. While SWBT agrees to
make every reasonable attempt to provide accurate Validation
information, the Parties acknowledge that Validation
information is the product of routine business service order
activity and fraud investigations. LSP acknowledges that SWBT
can furnish Validation information only as accurate and
current as the information has been provided to SWBT for
inclusion in its LIDB. Therefore, SWBT, in addition to the
limitations of liability set forth, is not liable for
inaccuracies in the Validation information records provided to
LSP except such inaccuracies caused by SWBT's willful or
wanton misconduct or gross negligence.
E. IN NO EVENT SHALL SWBT, ITS AFFILIATES, SUBSIDIARIES OR PARENT
CORPORATION, (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES OR
AGENTS) HAVE ANY LIABILITY WHATSOEVER TO OR THROUGH LSP FOR
ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR REVENUE OR
OTHER ECONOMIC LOSS
146
APPENDIX LIDB-V
PAGE 12 OF 14
IN CONNECTION WITH OR ARISING FROM ANYTHING SAID, OMITTED OR
DONE HEREUNDER, EVEN IF LSP HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
VII. COMMUNICATION AND NOTICES
A. Ordering and billing inquiries for the services described
herein from SWBT shall be directed to the Local Service
Provider Service Center (LSPSC). Ordering shall be done
through the LSPSC using the form attached hereto as Exhibit
III.
VIII. CONFIDENTIALITY
A. Identification SWBT and LSP recognize and acknowledge that, in
connection with the services to be provided hereunder, either
may disclose to the other party proprietary or confidential
customer, technical or business information in written
graphic, oral or other tangible or intangible forms. In order
for such information to be considered "Proprietary
Information" under this Appendix, such information must be
marked "Confidential" or "Proprietary" or bear a marking of
similar import. Orally disclosed information shall be
considered Proprietary Information only if contemporaneously
identified as such and reduced to writing and delivered to the
other party with a statement or marking of confidentiality
within twenty (20) calendar days after oral disclosure.
B. Nondisclosure. Subject to Sections 8C through 8F, the Party
(the___"Receiving Party") that receives Proprietary
Information from the other Party (the "Disclosing Party")
agrees:
(1) That all Proprietary Information shall be and shall
remain the exclusive property of the Disclosing
Party.
(2) To limit access to such Proprietary Information to
authorized employees and other individuals who have a
need to know the Proprietary Information in order to
perform its obligations under this Appendix.
(3) To keep such Proprietary Information confidential and
to use the same level of care to prevent disclosure
or unauthorized use of the received Proprietary
Information as it exercises in protecting its own
Proprietary Information of a similar nature.
(4) For a period of three (3) years following any
disclosure, not to copy or publish or disclose such
Proprietary Information to others or authorize anyone
else to copy or publish or disclose such Proprietary
Information to others without the prior written
approval of the Disclosing Party.
147
APPENDIX LIDB-V
PAGE 13 OF 14
(5) To use such Proprietary Information only for purposes
of performing its obligations under this Appendix and
for other purposes only upon such terms as may be
agreed upon between the Parties in writing.
C. Required Disclosures. The Receiving Party agrees to give
notice to the Disclosing Party of any demand to disclose or
provide Proprietary Information of the Disclosing Party to
another person, under lawful process, prior to disclosing or
furnishing such Proprietary Information. Further, the
Receiving Party agrees to reasonably cooperate if the
Disclosing Party deems it necessary to seek protective
arrangements. The Receiving Party may disclose or provide
Proprietary Information of the Disclosing Party to meet the
requirements of a court, regulatory body or government agency
having jurisdiction over the Party; provided, however, that
the Receiving Party shall notify the Disclosing Party so as to
give the Disclosing Party a reasonable opportunity to object
to such disclosure. The Disclosing Party may not unreasonably
withhold approval of protective arrangements provided by any
such court, regulatory body or government agency. Nothing
herein requires either Party to support the position of any
person or entity as to whether any particular Proprietary
Information is proprietary under applicable law or this
Section 8.
D. Exceptions. Notwithstanding anything to the contrary contained
in this Appendix, the Proprietary Information described herein
shall not be deemed confidential or proprietary and the
Receiving Party shall have no obligation to prevent disclosure
of such Proprietary Information if such Proprietary
Information:
(1) is already known to the Receiving Party;
(2) is or becomes publicly known, through publication,
inspection of the product, or otherwise, and through
no wrongful act of the Receiving Party;
(3) is received from a third party without similar
restriction and without breach of this Section 8;
(4) is independently developed, produced or generated by
the Receiving Party;
(5) is furnished to a third party by the Disclosing Party
without a similar restriction on the third party's
rights; or
(6) is approved for release by written authorization of
the Disclosing Party, but only to the extent of such
authorization.
E. Permitted Uses. SWBT shall be permitted to use Proprietary
Information obtained through recording the volume of LSP
Queries for the purposes of: (a) estimation of facilities
usage for jurisdictional separations; (b) engineering and
148
APPENDIX LIDB-V
PAGE 14 OF 14
network planning of facilities; and (c) measurement for
billing purposes.
F. Legal Requirements. Notwithstanding anything to the contrary
contained in this Agreement, a Party's ability to disclose
Proprietary Information or use disclosed Proprietary
Information is subject all applicable statures, decisions, and
regulatory rules concerning the disclosure and use of such
Proprietary Information which, by their express terms, mandate
a different handling of such information.
9. Mutuality
To the extent that LSP stores its own Validation Information in a
database, LSP agrees that Validation Information shall be available to
SWBT on terms and conditions comparable to those contained in this
Appendix. Such terms and conditions shall include, but not be limited
to, making such Validation Information available on a platform
technically similar to that employed by SWBT, and at a rate comparable
to that charged by SWBT.
10. Attached and incorporated herein are:
Exhibit I - Basis of Compensation
Exhibit II - Specifications and Standards
Exhibit III - LIDB Access Service Order Form
149
APPENDIX LIDB-V-EXHIBIT I
PAGE 1 OF 1
APPENDIX LIDB-V
BASIS OF COMPENSATION
1. COMPENSATION:
All rates and charges contained in this section are applicable in all
regulatory jurisdictions.
2. Rates and Charges
A LIDB Query Rate Per Ouery
--------------
1. Per LIDB Query Transport $.0045
2. Per LIDB Validation Query $.026
- Billed Number Screening
- Calling Card Count
B. LIDB Nonrecurring Charge Nonrecurring Charge
-------------------
1. Per Originating Point Code (OPC) $14.25
2. Per LIDB Validation Service Form $256.70
150
APPENDIX LIDB-V EXHIBIT II
PAGE 1 OF 1
APPENDIX LIDB-V
SPECIFICATIONS AND STANDARDS
Issuing Organization Document Number
-------------------- ----------------
Bellcore TR-NWT-000246
Bellcore TR-NWT-000271
Bellcore TR-TSV-000905
Bellcore TR-NWT-000954
SWBT TP 76638
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Customer Provided Factor Reports September 1996
Page 1
LIDB ACCESS VALIDATION SERVICES ORDER FORM
CUSTOMER NAME
----------------------------------------------------------------
CARRIER CUSTOMER NAME ABBREVIATION
(CCNA - THREE ALPHA CHARACTERS) --------------------------------------------
CUSTOMER ADDRESS
------------------------------------------------------------------------------
CUSTOMER BILLING NAME
--------------------------------------------------------
(IF DIFFERENT THAN CUSTOMER NAME)
ACCESS CUSTOMER NAME ABBREVIATION
---------------------------------------------
(ACNA - THREE ALPHA CHARACTERS)
CUSTOMER BILLING ADDRESS
-----------------------------------------------------
(IF DIFFERENT THAN CUSTOMER ADDRESS)
CITY, STATE, ZIP CODE
--------------------------------------------------------
CUSTOMER BILLING CONTACT NAME AND TELEPHONE NUMBER
----------------------------
( )
------------------------------------------------------------------------------
CREDIT INFORMATION: TYPE OF OWNERSHIP
(S - SOLE OWNER; C - INCORP.; P - PARTNERSHIP)
IF INCORPORATED:
STATE WHERE INCORP. DATE INCORP.
----------- ------------
CHARTER NUMBER
----------------------------------------------
XXXX.XXXX OFC. TEL. NO. ( )
----------------------------------- ------------------
V.P. NAME OFC. TEL. NO. ( )
---------------------------------- ------------------
XXXX.XXXX OFC. TEL. NO. ( )
---------------------------------- ------------------
TREA. NAME OFC. TEL. NO. ( )
--------------------------------- ------------------
IF PARTNERSHIP:
PARTNERS NAME OFC. TEL. NO. ( )
------------------------------ ------------------
PARTNERS NAME OFC. TEL. NO. ( )
------------------------------ -----------------
PARTNERS NAME OFC. TEL. NO. ( )
------------------------------ ------------------
PARTNERS NAME OFC. TEL. NO. ( )
------------------------------ ------------------
LETTER OF AGENCY DATED SIGNATURE
--------------------- -----------------------
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Page 2
SWBT ORDER NUMBER
-------------------
DESIRED DUE DATE FIRM DUE DATE
-------------------- -----------------------
FOR NEW SERVICE, THE APPROXIMATE NUMBER OF NPA NXXs
-----------------------
TYPE OF ACTIVITY (N - NEW OR ADD; C - CHANGE; D - DISCONNECT; S - SUPP)
---------
BILLING ACCOUNT NUMBER (BAN)
----------------------------------------------
CUSTOMER ORDER CONTACT NAME, ADDRESS, ZIP CODE, AND TELEPHONE NUMBER:
-------------------------------------
-------------------------------------
( )
---------------------- --- ---------
CUSTOMER TECHNICAL CONTACT NAME AND TELEPHONE NUMBER:
( )
------------------------------------------------------------- ---- -------------
CPOC SVC. REP. CONTACT NAME AND TELEPHONE NUMBER:
( )
------------------------------------------------------------- ---- -------------
*SWBT CKR: *TWO SIX CODE:
----------------------------------- --------------------
(SWBT ID OF CCS/SS7 INTERCONN. SVC.)
1.
--------------------
2.
--------------------
3.
--------------------
4.
--------------------
*THIS INFORMATION SHOULD BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR CCS/SS7
INTERCONNECTION SERVICE PROVIDER.
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Customer Provided Factor Reports September 1996
Page 3
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE____
ORIGINATING LINE NUMBER SCREENING _____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
[S] [C] [C] [C]
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------- ----------------- ---- -----------------
REMARKS
----------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
DATE AND TIME RECEIVED IN THE CPOC
154
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Page 4
LIDB VALIDATION SERVICE ____ CALLING NAME SERVICE____
ORIGINATING LINE NUMBER SCREENING _____
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
------- ----------------- ---- -----------------
------- ----------------- ---- -----------------
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------- ----------------- ---- -----------------
REMARKS
-----------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
DATE AND TIME RECEIVED IN THE CPOC
155
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Customer Provided Factor Reports September 1996
Page 5
LIDB ACCESS VALIDATION SERVICE ORDER FORM
INSTRUCTIONS
THE LIDB ACCESS VALIDATION SERVICE ORDER FORM CONSISTS OF FOUR PAGES.
PAGE 1 - ALL THE INFORMATION ON THIS PAGE IS FOR ADMINISTRATIVE USE IN
ESTABLISHING THE LIDB BILLING ACCOUNT. ALL OF THE INFORMATION IS
REQUIRED ON THE INITIAL ORDER. ORDERS SUBMITTED SUBSEQUENT TO THE
ESTABLISHED ACCOUNT WILL REQUIRE ONLY THE CUSTOMER'S NAME AND ADDRESS.
THE OTHER ENTRIES WILL BE REQUIRED ONLY IF THERE IS A CHANGE TO THE
ORIGINAL INFORMATION.
PAGE 2 - ALL THE INFORMATION ON PAGE TWO IS FOR THE REQUESTED ACTIVITY.
THIS INFORMATION WILL ALWAYS BE REQUIRED.
1. DESIRED DUE DATE/FIRM DUE DATE - APPROXIMATE NUMBER OF NPA NXXs
***DESIRED DUE DATE IS USED WHEN A FIRM DUE DATE HAS NOT BEEN
COORDINATED WITH THE LIDB CUSTOMER PRIOR TO THE SUBMISSION OF THE ORDER
FORM TO THE ICSC.
THE LIDB CUSTOMER WILL ENTER THEIR DESIRED DATE FOR THEIR LIDB SERVICE
TO BE ESTABLISHED AND THE APPROXIMATE NUMBER OF NPA NXXs ASSOCIATED
WITH THE NEW SERVICE.
IF THE ORDER IS FOR SUBSEQUENT ACTIVITY TO AN ESTABLISHED ACCOUNT, THE
APPROXIMATE NUMBER OF NPA NXXs WILL NOT BE REQUIRED.
***FIRM DUE DATE IS USED WHEN THE CUSTOMER'S ACCOUNT MANAGER HAS
COORDINATED WITH THE SNAC TO ESTABLISH THE DUE DATE PRIOR TO THE ORDER
FORM BEING SENT TO THE CPOC.
156
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Customer Provided Factor Reports September 1996
Page 6
PAGE 2 INSTRUCTIONS CONTINUED -
2. TYPE OF ACTIVITY
N - SHOULD BE ENTERED TO ESTABLISH A LIDB SERVICE CAN ALSO BE ENTERED
TO ADD ADDITIONAL POINT CODES TO AN EXISTING SERVICE
C - SHOULD BE ENTERED TO ADD POINT CODES TO OR DELETE POINT CODES FROM
AN EXISTING SERVICE
D - SHOULD BE ENTERED TO COMPLETELY DISCONNECT AN EXISTING SERVICE
S - SHOULD BE ENTERED TO MAKE A CHANGE ON A CURRENT ORDER PRIOR TO THE
COMPLETION DATE (i.e., CHANGE DUE DATE, CORRECT POINT CODE(S),
ETC.)
3. BILLING ACCOUNT NUMBER (BAN)
THE SWBT BILLING ACCOUNT NUMBER OF THE VALIDATION SERVICE AND/OR THE
CALLING NAME SERVICE
IF THE ORDER IS FOR NEW SERVICE, THIS FIELD WILL BE BLANK
4. CUSTOMER ORDER CONTACT...
A CONTACT WITH THE CUSTOMER THAT THE CPOC CAN COORDINATE WITH FOR THE
DESIRED DUE DATE OR CORRECTIONS TO AN ORDER.
5. CUSTOMER TECHNICAL CONTACT...
A TECHNICAL CONTACT WITH THE CUSTOMER THAT THE SWBT SNAC CAN COORDINATE
WITH FOR THE PROVISIONING OF THE SERVICE.
6. CPOC SERVICE REP....
THE SWBT CPOC SERVICE REPRESENTATIVE THAT NEGOTIATES THE ORDER WILL
ENTER THEIR NAME AND CONTACT INFORMATION.
7. SWBT CKR AND TWO SIX CODE
THIS INFORMATION WILL BE OBTAINED BY THE LIDB CUSTOMER FROM THEIR ORDER
TO ESTABLISH THEIR CCS/SS7 INTERCONNECTION SERVICE OR FROM THEIR
CCS/SS7 INTERCONNECTION SERVICE PROVIDER. THERE WILL ALWAYS BE FOUR
LINKS FOR ACCESS TO THE LIDB.
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Page 7
INSTRUCTIONS FOR PAGES 3 & 4 -
LIDB HAS THREE QUERY SERVICES: VALIDATION, CALLING NAME (CNAM), AND ORIGINATING
LINE NUMBER SCREENING (OLNS)
THERE IS NOT A SPECIFIC NUMBER OF POINT CODES REQUIRED FOR ANY LIDB SERVICE. THE
LIDB CUSTOMER CAN SUBMIT AS MANY COPIES OF PAGES 3 & 4 AS REQUIRED FOR THEIR
POINT CODES PER REQUEST.
THE VALIDATION, CNAM, AND OLNS WILL BE ESTABLISHED ON A SINGLE BILLING ACCOUNT.
IF THE LIDB CUSTOMER WOULD LIKE SEPARATE BILLING ACCOUNTS, THEN SEPARATE BANs
MUST BE REQUESTED (i.e. "ESTABLISH SEPARATE BILLING ACCOUNTS") IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. IF AN EXISTING LIDB CUSTOMER WANTS TO ESTABLISH
THEIR LIDB CNAM ON A SEPARATE BILLING ACCOUNT, THEN THE LIDB CUSTOMER SHOULD
ENTER "NEW BAN (OR SEPARATE BAN) FOR THE LIDB CNAM SERVICE" IN THE BILLING
ACCOUNT NUMBER FIELD ON PAGE 2. THE SAME WILL APPLY FOR A SEPARATE BAN FOR OLNS.
IN ORDER TO SET UP SEPARATE BILLING ACCOUNTS, THE POINT CODES FOR THE LIDB
VALIDATION, CNAM, AND OLNS SERVICES CANNOT BE THE SAME. THE CUSTOMER WILL USE
BOTH PAGES 3 & 4 TO SUBMIT THEIR POINT CODES SEPARATELY FOR SEPARATE BILLING
ACCOUNTS.
1. LIDB VALIDATION SERVICE ______CALLING NAME SERVICE ______
ORIGINATING LINE NUMBER SCREENING _____
ENTER A CHECK XXXX OR AN "X" TO INDICATE WHICH OF THE LIDB SERVICES THE ORDER
FORM IS REQUESTING TO ESTABLISH OR DELETE. IF ALL LIDB SERVICES ARE REQUESTED
ON THE SAME ORDER, THE POINT CODES FOR EACH SERVICE MUST BE LISTED ON
SEPARATE PAGES. THIS WILL ENABLE SWBT TO APPLY THE CORRECT NONRECURRING
CHARGES.
2. ACTIVITY TYPES
IF A LIDB CUSTOMER NEEDS TO CHANGE AN EXISTING OPC ON AN ESTABLISHED ACCOUNT,
THE "D" SHOULD BE USED TO INDICATE THE OPC CHANGING FROM AND THE "N" SHOULD
BE USED TO INDICATE THE OPC CHANGING TO.
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Page 8
PAGES 3 & 4 INSTRUCTIONS CONTINUED -
LIST OF ORIGINATING POINT CODES AND ACTIVITY TYPE
ACTIVITY TYPES: N - ESTABLISHING OR ADDING NEW POINT CODE(S)
D - DELETE EXISTING POINT CODE(S)
PLEASE NOTE IN THE FOLLOWING EXAMPLES, THE ORDER FORM ACTIVITY IS THE ENTRY FROM
PAGE 2, NUMBER 3. THIS IS NOT THE ACTIVITY TYPE.
EXAMPLE 1 - ORDER FORM ACTIVITY IS "N" TO ESTABLISH A NEW ACCOUNT AND SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX N XXX-XXX-XXX
EXAMPLE 2 - ORDER FORM ACTIVITY IS "C" TO CHANGE AN EXISTING POINT CODE OR TO
ADD A NEW POINT CODE AND DELETE AN EXISTING POINT CODE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
N XXX-XXX-XXX D XXX-XXX-XXX
EXAMPLE 3 - ORDER FORM ACTIVITY IS "D" TO DISCONNECT THE ACCOUNT AND THE SERVICE
ACT. ORIGINATING POINT ACT. ORIGINATING POINT
TYPE CODES: TYPE CODES:
D XXX-XXX-XXX D XXX-XXX-XXX
THE REMARKS SECTION MAY BE UTILIZED BY SWBT OR THE LIDB CUSTOMER.
THE DATE AND TIME RECEIVED WILL BE ENTERED BY THE SWBT CPOC UPON RECEIPT OF THE
FORM.
AFTER THE FORM HAS BEEN COMPLETED, IT SHOULD BE MAILED OR FAXED TO THE SWBT ICSC
IN ST. LOUIS, MISSOURI.
159
APPENDIX OSS
PAGE 2
APPENDIX OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
APPENDIX OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
1. GENERAL CONDITIONS
1.1 This Appendix sets forth the terms and conditions under which SWBT
provides nondiscriminatory access to SWBT's operations support systems (OSS)
"functions" to LSP for pre-ordering, ordering, provisioning, maintenance /
repair, and billing. Such functions will be made available as described herein
for Resold Services, as provided in Appendix Resale, and for Unbundled Network
Elements (UNE), as provided in Appendix UNE.
1.2 The functions, for Resale and UNE, will be accessible via
electronic interface, as described herein, where such functions are available.
Manual access will be available to all preordering, ordering, provisioning, and
billing functions via the Local Service Provider Service Center (LSPSC). Repair
and maintenance functions are available via manual handling by the Local Service
Provider Center (LSPC).
1.3 LSP agrees to utilize SWBT electronic interfaces, as SWBT defines
in its requirements, only for the functions described herein for the purposes of
establishing and maintaining Resale services or UNE. LSP agrees that such use
will comply with the summary of SWBT's Operating Practice No. 113, Protection of
Electronic Information, titled Local Service Provider Security Policies and
Guidelines.
1.4 LSP acknowledges and agrees that access to OSS functions will only
be utilized to view an end-user's Customer Proprietary Network Information under
the conditions set forth and agreed to in Exhibit A of this Appendix.
1.5 By utilizing electronic interfaces to access OSS functions, LSP
acknowledges and agrees to perform accurate and correct billing functions that
occur during ordering per the terms of this Agreement. Further, LSP recognizes
that such billing functions for conversion orders require viewing CPNI as
described in 1.4 above. All exception handling must be requested manually from
LSPSC.
1.6 In areas where Resale and UNE service order transactions cannot be
provided via an electronic interface for the pre-order, ordering and
provisioning processes, SWBT and LSP will utilize manual processes until such
time as the transactions can be electronically transmitted.
1.7 SWBT will provide a help desk function for electronic system
interfaces.
1.8 SWBT and LSP will jointly establish interface contingency and
disaster recovery plans for the pre-order, ordering and provisioning of Resale
services and UNE.
1.9 SWBT reserves the right to modify or discontinue the use of any
system or interface as it deems appropriate.
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1.10 If LSP elects to utilize industry standardized electronic
interfaces for Resale or UNE, SWBT and LSP agree to work together in the Order
and Billing Forum (OBF) and the Telecommunications Industry Forum (TCIF) to
establish and conform to uniform industry standards for electronic interfaces
for pre-order, ordering, and provisioning. Neither Party waives its rights as
participants in such forums in the implementation of the standards. To achieve
industry standard system functionality as quickly as possible, the Parties
acknowledge that SWBT may deploy these interfaces with requirements developed in
advance of industry standards. Thus, subsequent modifications may be necessary
to comply with emerging standards. LSP and SWBT are individually responsible for
evaluating the risk of developing their respective systems in advance of
standards and agree to support their own system modifications to comply with new
requirements.
2. PRE-ORDER
2.1 SWBT will provide access to pre-order functions to support LSP
ordering of Resale services and UNE via several electronic interfaces. The
Parties acknowledge that ordering requirements necessitate the use of current,
real time pre-order information to accurately build service orders. The
following lists represent pre-order information that will be available to LSP so
that LSP order requests may be created to comply with SWBT ordering
requirements.
2.2 PRE-ORDERING FUNCTIONS FOR RESALE SERVICES WILL INCLUDE:
2.2.1 customer name, billing address and residence or business
address, billed telephone numbers and features and services available in the end
office where the customer is provisioned;
2.2.2 features and services to which the customer subscribes
(LSP agrees that LSP's representatives will not access the information specified
in this Subsection until after the customer requests that the customer's local
exchange service provider be changed to LSP and such request complies with
conditions of Exhibit A of this Appendix.)
2.2.3 a telephone number (if the customer does not have one
assigned) with the customer on-line.
2.2.4 service availability dates to the customer;
2.2.5 information regarding the dispatch / installation
schedule, if applicable;
2.2.6 PIC options for intraLATA toll (when available) and
interLATA toll;
2.2.7 address verification.
2.3 PRE-ORDERING FUNCTIONS FOR UNE WILL INCLUDE:
2.3.1 customer name, billing address and residence or business
address, billed telephone numbers and features and services available in the end
office where the customer is
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provisioned;
2.3.2 features and services to which the customer subscribes
(LSP agrees that LSP's representatives will not access the information specified
in this Subsection until after the customer requests that the customer's local
exchange service provider be changed to LSP, and such request complies with
conditions of Exhibit A of this Appendix.)
2.3.3 telephone number (if the customer does not have one
assigned) with the customer on-line;
2.3.4 PIC options for intraLATA toll (when available) and
interLATA toll;
2.3.5 address verification;
2.3.6 channel facility assignment (CFA), network channel (NC),
and network channel interface (NCI) data.
2.4. Electronic Access to Pre-Order Functions: Upon request by
LSP for electronic access to pre-ordering functions, SWBT will provide LSP
access to one or more of the following systems:
2.4.1 RESALE SERVICES PRE-ORDER SYSTEM AVAILABILITY:
2.4.1.1 Residential Easy Access Sales Environment
(R-EASE): R-EASE is an ordering entry system through which SWBT will provide LSP
access for the functions of pre-ordering SWBT's Resale services so long as EASE
is utilized to order SWBT Residential Resale Services.
2.4.1.2 Business Easy Access Sales Environment
(EASE): B-EASE is an ordering entry system through which SWBT will provide LSP
access for the functions of preordering SWBT's Resale services so long as such
access is utilized to order SWBT's Business Resale Services.
2.4.2 RESALE AND UNE PRE-ORDER SYSTEM AVAILABILITY:
2.4.2.1 DataGate: DataGate is transaction-based data
query system through which SWBT will provide LSP access for the functions of
gathering pre-ordering information to support industry standardized ordering
processes for Residential and Business Resale services. When ordering Resale
services or UNE, LSP's representatives will have access to a pre-order
electronic gateway provided by SWBT for both consumer and business customers
that provides real-time access to SWBT's operations systems. This gateway shall
be a Transmission Control Protocol/Internet Protocol (TCP/IP) gateway and will
allow the LSP representatives to perform the pre-order functions for Resale
services and UNE, as described above. SWBT and LSP agree to work together to
develop and implement an electronic communication interface that will replace
this initial pre-order electronic interface consistent with industry standards
developed by the OBF and the TCIF.
2.4.2.2 VERIGATE is an Access Service Pre-order
system that will also provide access to the pre-ordering functions for Resale
Services and UNE. VERIGATE
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may be used in connection with electronic or manual ordering. VERIGATE provides
the UNE pre-order capability of identifying CFA information, NC, and NCI codes
that are associated with order requirements for UNE.
2.5 OTHER PRE-ORDER FUNCTION AVAILABILITY:
2.5.1 Where due dates are not available electronically, SWBT will
provide LSP with due date interval for inclusion in the service order request.
2.5.2 In addition to electronic interface access to pre-order
information, upon request, SWBT will provide LSP pre-order information in batch
transmission for the purposes of back-up data for periods of system
unavailability. The parties recognize such information must be used to construct
order requests only in exception handling.
3. ORDERING/PROVISIONING
3.1 SWBT will provide access to ordering functions to support LSP
provisioning of Resale services and UNE via one or more electronic interfaces.
Upon request for electronic access to ordering functions, SWBT will provide LSP
access to one or more of the following systems or interfaces:
3.2 RESALE SERVICES ORDER REQUEST SYSTEM AVAILABILITY:
3.2.1 R-EASE is available for the generation of Residential Resale
services orders. Ordering Flows will be available via these systems for the
following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.2.2 B-EASE is available for the generation of Business Resale
services orders. Ordering Flows will be available via these systems for the
following ordering functions: Conversion ("as is" or "with changes"); Change
(Features, Listings, Long Distance); New Connect; Disconnect; From and To
(change of premises with same service).
3.2.3 SWBT will provide LSP with an Electronic Data Interexchange
(EDI) Interface for transmission of industry-standardized Resale service order
requests in formats as defined by the Ordering and Billing Forum (OBF) and EDI
mapping as defined by TCIF. EDI ordering functionality will be made available as
negotiated and implemented in timeframes mutually acceptable to SWBT and LSP.
3.3 UNE SERVICE ORDER REQUEST ORDERING SYSTEM AVAILABILITY:
3.3.1 In ordering and provisioning UNE, LSP and SWBT will utilize
mutually agreeable standard industry order formats and data elements developed
by OBF and TCIF EDI. Where industry standards do not currently exist for the
ordering and provisioning of UNE, LSP and SWBT agree to jointly develop a form
for ordering Common-Use UNE. Common-Use UNE, including, without limitation,
tandem switching, signaling and call-related databases, Operator Services and
DA, and Operations Support Systems, shall be ordered in a manner that is
consistent with OBF Access Service Request Process; in addition customized
routing will be ordered in the same manner. Customer Specific UNE, including,
Local Loop (which includes
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NID), and unbundled Local Switching, and Interim Number Portability will be
ordered consistent with the OBF Local Service Request (LSR) process.
3.4 SWBT will provision Resale Services and UNE as prescribed in LSP
order requests. Access to status on such orders of Resale services and UNE will
be provided via the following electronic interfaces:
3.4.1 Customer Network Administration (CNA) will allow LSP to check
service order status via CNA.
3.4.2 In cases of industry-standardized EDI ordering, SWBT will
provide to LSP an EDI electronic interface for transferring and receiving
orders, Firm Order Confirmation (FOC), service completion, and, as available,
other provisioning data and information. SWBT will provide LSP with a FOC for
each Resale and UNE order. The FOC includes but is not necessarily limited to:
purchase order number, telephone number, Local Service Request number, due date,
Service Order number, and completion date. Upon work completion, SWBT will
provide LSP with an 855 EDI transaction-based Order Completion that states when
that order was completed. When available, SWBT will provide LSP an 865 EDI
transaction-based Order Completion.
3.4.3 A file transmission may be provided to confirm order
completions for R-EASE or B-EASE order processing. This file will provide
service order information of all distributed and completed orders for LSP,
regardless of order entry mechanism.
4. MAINTENANCE/REPAIR
4.1 Two electronic interfaces are accessible to place, and check the
status of, trouble reports for both Resale and UNE. Upon request, LSP may access
these functions via the following methods:
4.1.1 CNA system access provides LSP with SWBT software that allows
LSP to submit trouble reports and subsequently check status on trouble reports
for LSP end-users. CNA will provide ability to review the maintenance history of
a converted Resale LSP account.
4.1.2 Electronic Bonding Interface (EBI) is an
industry-standardized interface that is available for trouble report submission
and status updates. This EBI will conform to ANSI standards T1:227:1995 and
T1.228:1995, Electronic Communications Implementation Committee (ECIC) Trouble
Report Format Definition (TFRD) Number 1 as defined in ECIC document
ECIC/TRA/95-003, and all standards referenced within those documents, as
mutually agreed upon by LSP and SWBT. Functions currently implemented will
include Enter Trouble, Request Trouble Report Status, Add Trouble Information,
Modify Trouble Report Attributes, Trouble Report Attribute Value Change
Notification, and Cancel Trouble Report, as explained in 6 and 9 of ANSI
T1.228:1995. LSP. SWBT will exchange requests over a mutually agreeable
X.25-based network.
5. BILLING
5.1 SWBT shall xxxx LSP for resold services and UNE. SWBT shall send
associated billing information to LSP as necessary to allow LSP to perform
billing functions. At minimum
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SWBT will provide LSP billing information in a paper format or via magnetic
tape, as agreed to between LSP and SWBT.
5.2 Upon request, electronic access to billing information for Resale
Services will also be available via the following interfaces:
5.2.1 LSP may receive Xxxx Plus(tm), an electronic version of their
electronic xxxx as described in and in accordance with SWBT's Local Exchange
Tariff.
5.2.2 LSP may receive a mechanized xxxx format via the industry
standards EDI.
5.2.3 LSP may also view billing information through the CNA system.
5.2.4 SWBT shall provide the Usage Billable Records for Resale
Services via EMR industry standard format with a daily feed.
5.2.5 LSP may receive Local Disconnect Report records (via CARE
records) electronically that indicate when LSP's customers change their local
service provider.
5.3 Upon request, electronic access to billing information for UNE will
also be available via the following interfaces:
5.3.1 SWBT will make available a mechanized xxxx data tape (local)
format by February 1997.
5.3.2 LSP may also view billing information through the CNA system.
5.3.3 SWBT shall provide the Usage/Toll Billable Records for UNE
via EMR industry standard format with a daily feed.
5.2.4 LSP may receive Local Disconnect Report records (via CARE
records) electronically that indicate when LSP's customers, utilizing SWBT
ports, change their local service provider.
6. REMOTE ACCESS FACILITY
6.1 LSP must access the following SWBT's OSS functions via a LSP Remote
Access Facility (LRAF) located in Dallas, Texas: R-EASE, B-EASE, CNA, DATAGATE
and VERIGATE.
6.2 LSP may use three types of access: Switched, Private Line, and
Frame Relay. For Private Line and Frame Relay connections, LSP shall provide its
own router, circuit, and two Channel Service Units/Data Service Units (CSU/DSU).
The demarcation point shall be the router interface at the LRAF. Switched Access
connections require LSP to provide its own modems and connection to the SWBT
LRAF. LSP shall pay the cost of the call if Switched Access is used.
6.3 LSP shall use TCP/IP to access SWBT OSS via the LRAF. In addition,
each LSP shall have a valid Internet Protocol (IP) network address. A user-id
/password unique to each
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individual accessing an OSS shall be maintained to access SWBT OSS's. LSP shall
provide estimates regarding its volume of transactions, number of concurrent
users, desired number of private line or dial-up (switched) connections, and
length of a typical session.
6.4 LSP shall attend and participate in implementation meetings to
discuss LSP LRAF access plans in detail and schedule testing of such
connections. SWBT shall make a Help Desk function available to assist LSP on an
ongoing basis in accessing any SWBT OSS over the LRAF.
7. OPERATIONAL READINESS TEST (ORT) FOR ORDERING/PROVISIONING
7.1 LSP must participate with SWBT in Operational Readiness Testing
(ORT), which will allow for the testing of the systems, interfaces, and
processes for the ordering and provisioning of Resale services. ORT will be
completed in conformance with agreed upon implementation dates.
8. RATES - OKLAHOMA
8.1 LSP requesting access to one or more of the SWBT OSS functions
(i.e., preordering, ordering / provisioning, maintenance / repair, billing)
agrees to pay the following rate:
System Access $ 3,310.00 / month
8.2 LSP requesting functions via interfaces that require connection to
the Remote Access Facility, as described in section 6, agrees to pay the
following rate(s) depending upon on method of access utilized:
Remote Access Facility Access Methods
Direct Connection Per Port $ 1,595.00 / month
Dial Up Per Port $ 320.00 / month
8.4 LPS requesting the Xxxx Plus, as described in 5.2.1, agrees to pay
applicable tariffed rate, less Resale discount.
8.3 LSP requesting the billing function for Usage Billable Records, as
described in 5.2.4, agrees to pay $.003 per message transmitted.
8.4 LSP requesting the Local Disconnect Report, as described in 5.2.5,
agrees to pay $0.10 per record transmitted.
8.4 Should unforeseen modifications and costs to provision OSS
functions become required by SWBT or industry standards, SWBT reserves the right
to modify its rate structure. In addition, should LSP request custom development
of an exclusive interface to support OSS functions, such development will be
considered by SWBT on an Individual Case Basis (ICB) and priced as such.
9. EFFECTIVE DATE, TERM
9.1 The Appendix OSS will be effective upon approval by the state
commission when
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it determined that the entire Interconnection Agreement is in compliance with
Sections 251 and 252 of the Act.
9.2 The Term Appendix OSS will be the shorter of the Term of this
Interconnection Agreement or December 31, 1998. Continuation of Appendix OSS
follows the continuation rules of the Agreement. Should the Interconnection
Agreement establish a new term, the Term of Appendix OSS will be the shorter of
one year, or the new Term of the Interconnection Agreement. Should the term of
the Interconnection Agreement Expire without provision for continuance, the Term
of Appendix OSS expires as well.
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PAGE 1 OF 1
BLANKET CERTIFICATION FOR END-USER AUTHORIZATION FOR RELEASE
OF CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI)
The undersigned hereby agrees:
Before it may obtain CPNI of an end-user, whether via an independent request or
in the course of ordering SWBT's network elements or services via manual and/or
mechanized interfaces, the undersigned must, at least, certify that "yes" (Y) it
has obtained Authorization for Release of CPNI and provide the name of the
individual authorizing the release of CPNI. By these indications, the
undersigned affirms that a current Authorization for the Release of CPNI has
been opined from an end-user and that it includes the expressed content of the
language, "Minimum Scope." SWBT may then provide the CPNI referenced herein.
Minimum Scope: Authorization for the release of CPNI
1) An affirmative written request that substantially reflects
the following: "This document serves as instruction to all
holders of my local exchange telecommunications Customer
Proprietary Network Information (CPNI) to provide such
information to the undersigned. I understand that this CPNI
includes the following information: billing name, service
address, billing address, service and feature subscription,
directory listing information long distance carrier identity,
and all pending service order activity. This Authorization
remains in effect until such time that I revoke it directly or
appoint another individual/company with such capacity or
undersigned receives notice to disconnect my local exchange
service or notice that a service disconnect has been
performed. At and from such time, this Authorization is null
and void."
or
2) Authorization for change in local exchange service and
release of CPNI with documentation that adheres to all
requirements of state and federal law, as applicable.
-------------------------------
Signed
-------------------------------
Name (Typed/Printed)
-------------------------------
Title
-------------------------------
Company
-------------------------------
Date
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SIGNATURE PAGE
PAGE 1 OF 1
DIGITAL TELEPORT, INC. (MISSOURI) SOUTHWESTERN XXXX TELEPHONE COMPANY
By: By:
------------------------------- ---------------------------------
(name printed or typed) (name printed or typed)
Signature: Signature:
-------------------------- ---------------------------
Title: Title:
--------------------------- -----------------------------
(printed or typed) (printed or typed)
Date: Date:
------------------------------ ----------------------------
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APPENDIX OS
OPERATOR SERVICES
This Appendix sets forth the terms and conditions under which Southwestern Xxxx
Telephone Company ("SWBT") agrees to provide Operator Services for LSP ("LSP").
I. SERVICES
SWBT will provide the following Operator Services:
A. FULLY AUTOMATED CALL PROCESSING - Allows the caller to
complete a call utilizing equipment without the assistance of a SWBT
operator, hereafter called "Operator."
This allows the caller the option of completing calls through an
automated alternate billing system (AABS). Automated functions can
only be activated from a touch-tone telephone. Use of a rotary
telephone and failure or low response by the caller to the audio
prompts will bridge the caller to an Operator for assistance. The
called party must also have Touch-tone service to automatically
accept calls that are billed collect or to a third number.
B. OPERATOR-ASSISTED CALL PROCESSING - Allows the caller to
complete a call by receiving assistance from an Operator.
II. DEFINITIONS
A. FULLY AUTOMATED CALL PROCESSING
SWBT will support the following fully automated call types for LSP:
1. FULLY AUTOMATED CALLING CARD STATION-TO-STATION - This service
is provided when the caller dials zero ("0"), plus the desired
telephone number and the telecommunications calling card
number to which the call is to be charged. The call is
completed without the assistance of an Operator. An authorized
telecommunications calling card for the purpose of this
Appendix, is one for which SWBT can perform billing
validation. Fully-Automated Calling Card Call Service may also
include the following situations:
a. When an individual with a disability
dials zero (0) and identifies himself or herself as
disabled, he or she will provide the Operator the
desired telephone number and the calling card number to
which the call is to be billed.
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b. When due to trouble on the network,
or lack of service components (facilities to the AABS
network), the automated call processing cannot be
completed without assistance from an Operator.
c. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
2. FULLY AUTOMATED STATION-TO-STATION - This service is limited
to those calls placed collect or billed to a third number. The
caller dials zero (0) plus the telephone number desired, the
service selection codes and/or billing information as
instructed by the automated equipment. The call is completed
without the assistance of an Operator. Fully Automated
Station-to-Station service may also include the following
situations:
a. When an individual with a disability
identifies himself or herself as disabled and provides
the Operator the number to which the call is to be
billed (either collect or third number).
b. When due to trouble on the network or
lack of service components, the automated call cannot be
completed without assistance from an Operator.
c. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
B. OPERATOR-ASSISTED CALL PROCESSING
SWBT will support the following operator-assisted call types for LSP:
1. SEMI-AUTOMATED STATION-TO-STATION - A service provided when
the caller dials zero (0) plus the telephone number desired
and the call is completed with the assistance of an Operator.
Semi-Automated Station-to-Station service may also include the
following situations:
a. Where the caller does not dial zero
(0) prior to calling the number desired from a public or
semi-public telephone, or from a telephone where the
call is routed directly to an Operator (excluding
calling card calls).
b. When an Operator re-establishes an
interrupted call that meets any of the situations
described in this call type.
2. SEMI-AUTOMATED PERSON-TO-PERSON - A service in which the
caller dials zero (0) plus the telephone number desired and
specifies to the
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Operator the particular person to be reached or a particular
PBX station, department or office be reached through a PBX
attendant. This service applies even if the caller agrees,
after the connection is established, to speak to any party
other than the party previously specified. Semi-Automated
Person-to-Person service may also include:
a. Where the caller does not dial a zero
(0) prior to dialing the number from a public or
semi-public telephone, or where the call is routed
directly to an Operator.
b. When an operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
3. SEMI-AUTOMATED CALLING CARD STATION-TO-STATION - A service
provided when the caller dials zero (0) plus the desired
telephone number and provides the Operator the calling card
number to which the call is to be charged. Semi-Automated
Calling Card Station-to-Station service may also include the
following situations:
a. When the caller does not dial zero
(0) prior to dialing the number desired from a public or
semi-public telephone, or from a telephone that is
directly routed to an Operator, and the call is billed
to a calling card.
b. When an Operator reestablishes an
interrupted call that meets any of the situations
described in this call type.
4. STATION-TO-STATION (OPERATOR HANDLED) - A service provided
when the caller dials zero (0) and places a sent paid,
collect, third number or calling card station-to-station call
using an Operator's assistance. These calls may originate from
a private, public or semi-public telephone. The service may
also include the situation when an Operator reestablishes an
interrupted call that meets any of the situations described in
this call type.
5. PERSON-TO-PERSON (OPERATOR HANDLED) - A service in which the
caller dials zero (0) and specifies to the Operator the number
desired and the person to be reached, or a particular PBX
station, department or office to be reached through a PBX
attendant, or a particular mobile service point to be reached
through a mobile telephone attendant. The call remains a
person-to-person call even if the caller agrees, after the
connection is established, to speak to any party other than
the party previously specified. The service may also include
situations when an Operator reestablishes an interrupted call
that meets any of the situations described in this call type.
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6. LINE STATUS VERIFICATION - A service in which the caller asks
the Operator to determine the condition of a telephone line.
7. BUSY LINE INTERRUPT - A service in which the caller asks the
Operator to interrupt a conversation in progress, to determine
if one of the parties is willing to speak to the caller
requesting the interrupt. A Busy Line Interrupt charge will
apply even if no conversation is in progress at the time of
the interrupt attempt, or when the parties interrupted refuse
to terminate the conversation in progress.
8. 0PERATOR TRANSFER SERVICE - A service offered by SWBT in which
the local caller requires Operator Assistance for completion
of a call outside the originating LATA. The SWBT Operator
transfers the call to an interexchange carrier selected by the
caller from a list of IXCs provided to SWBT by the LSP. This
transfer service is similar to SWBT's "0perator Transfer"
service offering. LSP agrees to obtain all necessary
compensation arrangements between LSP and participating
carriers.
9. MISCELLANEOUS - Includes the following call types: General
Assistance and Rate Quotes, 800, 888 and connections to all
other Toll Free services, Repair Bureau and Business Office
requests, credit requests, NPA-NXX location requests, and all
other 0- No Attempt services.
III. CALL BRANDING AND RATE REFERENCE REQUIREMENTS
A. REQUIREMENTS - Pursuant to Section 226 (b) of The Telecommunications
Act of 1996, each provider of Operator Services is required to:
1. provide its brand at the beginning of each telephone call and
before the consumer incurs any charge for the call; and
2. disclose immediately to the consumer, upon request a quote of
its rates or charges for the call.
B. CALL BRANDING - In compliance with A. 1. above, SWBT will brand
Operator Services in LSP's name based upon the criteria outlined
below:
1. LSP will provide SWBT with written specification
of its company name to be used in creating LSP specific
branding messages for its OS calls.
2. An initial non-recurring charge applies per TOPS
switch, per load for the establishment of Call Branding as
well as a charge per TOPS switch, per subsequent load to
change the brand. In addition, a per call charge applies for
every Operator Services call handled by SWBT on behalf of LSP
when such
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services are provided in conjunction with: i) the purchase of
SWBT's unbundled local switching; or ii) when multiple brands
are required on a single Operator Services trunk. Prices for
Call Branding are as outlined in Exhibit II, attached hereto
and incorporated herein.
C. OPERATOR SERVICES (OS) RATE/REFERENCE INFORMATION - In compliance
with A. 2. above, SWBT will provide LSP Operator Services
Rate/Reference Information based upon the criteria outlined below:
1. LSP will furnish OS Rate and Reference Information in a
mutually agreed to format or media thirty (30) days in advance
of the date when the Operator Services are to be undertaken.
2. LSP will inform SWBT, in writing, of any changes to be made to
such Rate/Reference Information ten (10) working days prior to
the effective Rate/Reference change date. LSP acknowledges
that it is responsible to provide SWBT updated Rate/Reference
Information in advance of when the Rates/Reference Information
are to become effective.
3. In all cases when a SWBT Operator receives a rate request from
a LSP end user, SWBT will quote the applicable OS rates as
provided by LSP.
4. An initial non-recurring charge will apply per TOPS switch for
loading of LSP's Operator Services Rate/Reference Information
as well as a charge per TOPS switch, for each subsequent
change to either LSP's Operator Services Rate or Reference
Information.
IV. HANDLING OF EMERGENCY CALLS TO OPERATOR
To the extent LSP's NXX encompasses multiple emergency agencies, SWBT will
agree to query the caller on his/her community and to transfer the caller to
the appropriate emergency agency for the caller's area. LSP must provide
SWBT with the correct information to enable the transfer. When the
assistance of another Carrier's operator is required, SWBT will attempt to
reach the appropriate operator if the network facilities for inward
assistance exist. LSP agrees to indemnify SWBT for any misdirected calls.
V. RESPONSIBILITIES OF THE PARTIES
A. SWBT will be the sole provider of Operator Services for LSP's local
service area(s) listed in Exhibit I, which is attached to this
Appendix, beginning on the service effective date also shown in
Exhibit I. SWBT will provide Operator Services only where the
necessary physical facilities are available and in place and under
conditions previously stated in this Appendix.
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B. LSP will be responsible for providing the equipment and facilities
necessary for signaling and routing calls with Automatic Number
Identification (ANI) to each SWBT operator switch. Should LSP seek to
provide interexchange Operator Services under this agreement, it is
responsible for ordering the necessary facilities through SWBT's
interstate or intrastate Access Service tariffs. Nothing in this
agreement in any way changes the manner in which an interexchange
Carrier obtains access service for the purpose of originating or
terminating interexchange traffic.
C. Facilities necessary for the provision of Operator Services shall be
provided by the parties hereto, using standard trunk traffic
engineering procedures to insure that the objective grade of service
is met. Each party shall bear the costs for its own facilities. LSP
shall bear the costs of facilities necessary for signaling and
routing calls with Automatic Number Identification (ANI) to each SWBT
operator switch. SWBT shall bear the cost of facilities and equipment
necessary to provide Operator Services.
D. LSP will furnish in writing to SWBT, thirty (30) days in advance of
the date when the Operator Services are to be undertaken, unless
otherwise agreed to by the SWBT, all records required by SWBT to
provide the Operator Services.
E. LSP will keep all records furnished to SWBT current by using
reporting forms and procedures that are mutually acceptable to both
parties, and will inform SWBT in advance of any changes to be made in
such records. SWBT will specify the required interval for such
advance notice. LSP will provide all records and changes to records
to SWBT in writing or in any other mutually agreeable format.
F. SWBT will accumulate and provide the LSP such data as necessary for
the LSP to verify traffic volumes and xxxx its end users.
VI. METHODS AND PRACTICES
SWBT will provide the Operator Services to LSP's end users in accordance
with SWBT's OS methods and practices in effect for SWBT at the time the
OS call is made, unless otherwise agreed in writing by both parties.
VII. PRICING
Pricing for Operator Services shall be based on the rates specified in
Exhibit II, PRICING, which is attached and made part of this Appendix.
The rates will apply from the service effective date through the term of
this agreement as specified in paragraph X., A. below. At any time
beyond the specified or the term of this Appendix, SWBt may change the
prices for the provision of OS upon one hundred-twenty (120) days' notice
to LSP.
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VIII. MONTHLY BILLING
SWBT will render monthly billing statements to LSP, and remittance in
full will be due within thirty (30) days of receipt.
IX. LIABILITY
A. In addition to the liability provisions contained in the Agreement,
LSP agrees to defend, indemnify, and hold harmless SWBT from any and
all losses, damages, or other liability including attorneys fees that
LSP may incur as a result of claims, demands, wrongful death actions,
or other suits brought by any party that arise out of LSP's end users
use of Operator Services. LSP shall defend against all end user
claims just as if LSP had provided such service to its end user with
the LSP's own operators and shall assert its tariff limitation of
liability for benefit of both SWBT and LSP.
B. LSP also agrees to release, defend, indemnify, and hold harmless SWBT
from any claim, demand or suit that asserts any infringement or
invasion of privacy or confidentiality of any person or persons
caused or claimed to be caused, directly, or indirectly, by SWBT
employees and equipment associated with provision of the Operator
Services. This provision includes but is not limited to suits arising
from disclosure of the telephone number, address, or name associated
with the telephone called or the telephone used to call the Operator
Services.
X. TERMS OF APPENDIX
A. Unless sooner terminated, this Appendix will continue in force for a
period of one (l) year from the effective date of this agreement and
thereafter until terminated by one hundred-twenty (120) days notice
in writing from either Party to the other.
B. If LSP terminates this agreement prior to the agreed-upon term of
this Appendix, LSP shall pay, within thirty (30) days of the issuance
of a final xxxx by SWBT, all amounts due for actual services provided
under this Appendix, plus estimated monthly charges for the remainder
of the term. Estimated charges will be based on an average of the
actual monthly amounts billed by SWBT pursuant to this Appendix
prior to its termination.
C. The rates applicable for determining the amount(s) under the terms
outlined in this Section are those specified in Exhibit II.
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APPENDIX OS - EXHIBIT I
PAGE 1 OF 1
APPENDIX OS
LOCAL SERVICE AREA(S)
EFFECTIVE:
----------------------
(mm/dd/yr)
The following table depicts the service area(s) covered by this Appendix:
LSP'S LOCAL SERVICE AREA(S) EFFECTIVE DATE
--------------------------- --------------
--------------------------- --------------
--------------------------- --------------
--------------------------- --------------
--------------------------- --------------
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APPENDIX OS - EXHIBIT II
PAGE 1 OF 1
APPENDIX OS
OKLAHOMA
EXHIBIT II
PRICING - FCILITIES BASED
EFFECTIVE:______________________
(mm/dd/yr)
The following rates will apply for each service element:
A. FULLY AUTOMATED CALL PROCESSING
This usage rate applies to each call that has been completed
on a fully automated basis.
Rate per completed automated call $ 0.179
B. OPERATOR-ASSISTED CALL PROCESSING
This usage rate applies to each call that has been answered by
or forwarded to an operator.
Rate per actual work second $ 0.021
C. CALL BRANDING
An initial non-recurring charge applies per TOPS switch,
per brand for the establishment of LSP specified Call
Branding. An additional non-recurring charge applies
for each subsequent change to the branding
Rate per initial load group $2,700.00
Rate per load for Brand change $2,700.00
Per Call(1) $ 0.02
D. OPERATOR SERVICES RATE/REFERENCE INFORMATION
An initial non-recurring charge applies per TOPS switch,
per rate schedule, for the initial load of LSP's Operator
Services Rate/Reference Information. An additional
non-recurring charge applies for each subsequent change
to Rate/Reference Information.
Rate per initial load $4,100.00
Rate per subsequent rate change $2,900.00
Rate per subsequent reference change $2,900.00
__________________
(1) A per call charge will apply when OS are provided in conjunction with: i)
unbundled local switching or ii) when multiple brands are required on a single
operator services trunk
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APPENDIX NIM
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APPENDIX NETWORK INTERCONNECTION METHODS (NIM)
This Appendix NIM designates Network Interconnection Methods (NIMs) to be
used by the Parties. These include, but are not limited to: MidSpan
Fiber Interconnection (MSFI); Virtual Collocation Interconnection; SONET
Based Interconnection; Physical Collocation Interconnection; leasing of
SWBT facilities; and other methods as mutually agreed to by the Parties.
1. MID-SPAN FIBER INTERCONNECTION (MSFI)
Mid-Span Fiber Interconnection (MSFI) between Southwestern Xxxx Telephone
(SWBT) and LSP can occur at any mutually agreeable, economically and
technically feasible point between LSP's premises and a SWBT tandem or
end office. This interconnection will be on a point-to-point SONET
system over single mode fiber optic cable.
MSFI may be used to provide interconnection trunking as defined in
Appendix ITR to Attachment 11: Network Interconnection Architecture.
A. There are two basic mid-span interconnection designs:
1. Design One: LSP's fiber cable and SWBT's fiber cable are
connected at an economically and technically feasible point between
the LSP location and the last entrance manhole at the SWBT central
office.
The Parties may agree to a location with access to an existing
SWBT fiber termination panel. In these cases, the network
interconnection point (POI) shall be designated outside of the SWBT
building, even though the LSP fiber may be physically terminated on
a fiber termination panel inside of a SWBT building. In this
instance, LSP will not incur fiber termination charges and SWBT will
be responsible for connecting the cable to the SWBT facility.
The Parties may agree to a location with access to an existing
LSP fiber termination panel. In these cases, the network
interconnection point (POI) shall be designated outside of the LSP
building, even though the SWBT fiber may be physically terminated on
a fiber termination panel inside of an LSP building. In this
instance, SWBT will not incur fiber termination charges and LSP will
be responsible for connecting the cable to the LSP facility.
If a suitable location with an existing fiber termination panel
cannot be agreed upon, LSP and SWBT shall mutually determine
provision of a fiber termination panel housed in an outside, above
ground, cabinet placed at the physical POI. Ownership and the cost
of provisioning the panel will be negotiated between the two
parties.
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APPENDIX NIM
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2. Design Two: LSP will provide fiber cable to the last
entrance manhole at the SWBT tandem or end office switch with which
LSP wishes to interconnect. LSP will provide a sufficient length of
fiber optic cable for SWBT to pull the fiber cable to the SWBT cable
vault for termination on the SWBT fiber distribution frame (FDF). In
this case the POI shall be at the manhole location.
Each Party is responsible for designing, provisioning,
ownership and maintenance of all equipment and facilities on its
side of the POI. Each Party is free to select the manufacturer of
its Fiber Optic Terminal (FOT). Neither Party will be allowed to
access the Data Communication Channel (DCC) of the other Party's
FOT. The Parties will work cooperatively to achieve equipment
compatibility.
B. The Parties will mutually agree upon the precise terms of each mid-span
interconnection facility. These terms will cover the technical details of
the interconnection as well as other network interconnection, provisioning
and maintenance issues.
C. The LSP location includes FOTs, multiplexing and fiber required to take
the optical signal handoff from SWBT for interconnection trunking as
outlined in Appendix ITR.
D. The fiber connection point may occur at several locations:
1. a location with an existing SWBT fiber termination panel. In
this situation, the POI shall be outside the SWBT building which
houses the fiber termination panel;
2. a location with access to an existing LSP fiber termination
panel. In these cases, the network interconnection point (POI)
shall be designated outside of the LSP building, even though the
SWBT fiber may be physically terminated on a fiber termination
panel inside a LSP building;
3. a location with no existing SWBT fiber termination panel. In
this situation, SWBT and LSP will negotiate provisioning,
maintenance and ownership of a fiber termination panel and above
ground outside cabinet as a POI and for connection of the fiber
cables;
4. a manhole outside of the SWBT central office. In this
situation, LSP will provide sufficient fiber optic cable for SWBT
to pull the cable into the SWBT cable vault for termination on the
SWBT FDF. The POI will be at the manhole and SWBT will assume
maintenance responsibility for the fiber cabling from the manhole
to the FDF.
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APPENDIX NIM
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E. The SWBT tandem or end office switch includes all SWBT FOT, multiplexing
and fiber required to take the optical signal hand-off provided from LSP
for interconnection trunking as outlined in Appendix ITR. This location is
SWBT's responsibility to provision and maintain.
F. In both designs, LSP and SWBT will mutually agree on the capacity of the
FOT(s) to be utilized. The capacity will be based on equivalent DS1s that
contain trunks and interLATA traffic. Each Party will also agree upon the
optical frequency and wavelength necessary to implement the
interconnection. The Parties will develop and agree upon methods for the
capacity planning and management for these facilities, terms and
conditions for over provisioning facilities, and the necessary processes
to implement facilities as indicated below. These methods will meet
quality standards as mutually agreed to by LSP and SWBT.
2. AVOIDANCE OF OVER PROVISIONING
Underutilization is the inefficient deployment and use of the network due
to forecasting a need for more capacity than actual usage requires, and
results in unnecessary costs for SONET systems. To avoid over
provisioning, the Parties will agree to joint facility growth planning as
detailed below.
3. JOINT FACILITY GROWTH PLANNING
The initial fiber optic system deployed for each interconnection shall be
the smallest standard available. For SONET this is an OC-3 system. The
following list the criteria and processes needed to satisfy additional
capacity requirements beyond the initial system.
A. Criteria:
1. Investment is to be minimized;
2. Facilities are to be deployed in a "just in time" fashion.
B. Processes
1. discussions to provide relief to existing facilities will be
triggered when either Party recognizes that the overall system facility
(DS1s) is at 90% capacity;
2. both Parties will perform a joint validation to ensure current
trunks have not been over-provisioned. If any trunk groups are
over-provisioned, trunks will be turned down as appropriate. If any
trunk resizing lowers the fill level of the system below 90%, the
growth planning process will be suspended and will not be reinitiated
until a 90% fill level is achieved. Trunk design blocking criteria
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APPENDIX NIM
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described in Appendix ITR will be used in determining trunk group
sizing requirements and forecasts;
3. if based on the forecasted equivalent DS1 growth, the existing fiber
optic system is not projected to exhaust within one year, the Parties
will suspend further relief planning on this interconnection until a
date one year prior to the projected exhaust date. If growth patterns
change during the suspension period, either Party may re-initiate the
joint planning process;
4. if the placement of a minimum size FOT will not provide adequate
augmentation capacity for the joint forecast over a two year period,
and the forecast appears reasonable based upon history, the next larger
system may be deployed. In the case of a SONET system, the OC-3 system
could be upgraded to an OC-12. If the forecast does not justify a move
to the next larger system, another minimal size system (such as on
OC-3) could be placed. This criteria assumes both Parties have adequate
fibers for either scenario. If adequate fibers do not exist, both
Parties would negotiate placement of additional fibers;
5. both Parties will negotiate a project service date and corresponding
work schedule to construct relief facilities in an effort to achieve
"just in time" deployment;
6. the joint planning process/negotiations should be completed within
two months of identification of 90% fill.
4. VIRTUAL COLLOCATION INTERCONNECTION
The description of Virtual Collocation Interconnection is contained in
SWBT's Virtual Collocation tariffs (i.e., SWBT's Tariff F.C.C. No. 73).
5. SONET-BASED INTERCONNECTION
The description of SONET-Based Interconnection is contained in SWBT's
Sonet-Based Interconnection tariffs (i.e., SWBT's Tariff F.C.C. No. 73).
6. PHYSICAL COLLOCATION INTERCONNECTION
SWBT will provide Physical Collocation Interconnection on
nondiscriminatory terms and conditions at the time LSP requests such
interconnection.
7. LEASING OF SWBT'S FACILITIES
LSP's leasing of SWBT's facilities for purposes of Attachment 11: Network
Interconnection Architecture will be subject to the mutual agreement of
the Parties.
182
PHYSICAL COLLOCATION AGREEMENT
BETWEEN
SOUTHWESTERN XXXX TELEPHONE COMPANY
AND
DIGITAL TELEPORT, INC.
183
TABLE OF ARTICLES
ARTICLE I - PREMISES .................................................. -1-
ARTICLE II - EFFECTIVENESS AND REGULATORY APPROVAL .................... -2-
ARTICLE III - TERM .................................................... -3-
ARTICLE IV - PREMISES CHARGES ......................................... -4-
ARTICLE V - INTERCONNECTION CHARGES ................................... -7-
ARTICLE VI - FIBER OPTIC CABLE AND DEMARCATION POINT .................. -7-
ARTICLE VII - USE OF PREMISES ......................................... -8-
ARTICLE VIII - STANDARDS .............................................. -10-
ARTICLE IX - RESPONSIBILITIES OF THE INTERCONNECTOR ................... -11-
ARTICLE X - QUIET ENJOYMENT ........................................... -13-
ARTICLE XI - ASSIGNMENT ............................................... -13-
ARTICLE XII - CASUALTY LOSS ........................................... -13-
ARTICLE XIII - RE-ENTRY .............................................. -14-
ARTICLE XIV - LIMITATION OF LIABILITY ................................. -15-
ARTICLE XV - INDEMNIFICATION OF SWBT .................................. -16-
ARTICLE XVI - SERVICES, UTILITIES, MAINTENANCE AND FACILITIES ......... -17-
ARTICLE XVII - LIMITATION OF ACTIONS; DISPUTE RESOLUTION .............. -17-
ARTICLE XVIII - SUCCESSORS BOUND ...................................... -19-
ARTICLE XIX - CONFLICT OF INTEREST .................................... -19-
ARTICLE XX - NON-EXCLUSIVE REMEDIES ................................... -20-
ARTICLE XXI - NOTICES ................................................. -20-
ARTICLE XXII - COMPLIANCE WITH LAWS ................................... -20-
ARTICLE XXIII - OSHA STATEMENT ........................................ -21-
ARTICLE XXIV - INSURANCE .............................................. -21-
ARTICLE XXV - SWBT'S RIGHT OF ACCESS .................................. -24-
ARTICLE XXVI - PURPOSE AND SCOPE OF AGREEMENT ......................... -24-
184
ARTICLE XXVII - MISCELLANEOUS ......................................... -25-
185
PHYSICAL COLLOCATION AGREEMENT
THIS PHYSICAL COLLOCATION AGREEMENT ("Agreement") is made this
_____________ day of ____________________, 19__ by and between SOUTHWESTERN
XXXX TELEPHONE COMPANY, a Missouri corporation ("SWBT"), and Digital Teleport,
Inc., a [STATE OF INCORPORATION] corporation ("Interconnector").
WITNESSETH
WHEREAS, SWBT is an incumbent local exchange carrier having a statutory
duty to provide for "physical collocation" of "equipment necessary for
interconnection or access to unbundled network elements" at its premises, 47
U.S.C. 251(c)(6);
WHEREAS, the Interconnector wishes to physically locate certain of its
equipment within the Premises (as defined herein) and connect with SWBT;
NOW THEREFORE, in consideration of the mutual agreements and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, SWBT and the Interconnector (the
"parties") agree as follows:
ARTICLE I - PREMISES
1.1 Right to Use. Subject to this Agreement, SWBT grants to
Interconnector the right to use the premises described on Exhibit __
("Premises"), attached and incorporated herein, within real property at
___________ in the City of ______________, County of _________________, State of
_________________.
1.2 Relocation. Notwithstanding Section 1.1, in the event that SWBT
determines it necessary for the Premises to be moved within the building in
which the Premises is located ("Building") or to another SWBT wire center, the
Interconnector is required to do so. In such an event, the Interconnector shall
be responsible for the preparation of the new premises at the new location if
such relocation arises from circumstances beyond the reasonable control of SWBT,
including condemnation
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or government order or regulation that makes the continued occupancy of the
Premises or Building uneconomical in SWBT's sole judgment. Otherwise SWBT shall
be responsible for any such preparation.
In the event that the Interconnector requests that the Premises be moved
within the Building or to another SWBT wire center, SWBT shall permit the
Interconnector to relocate the Premises, subject to the availability of space
and associated requirements. The Interconnector shall be responsible for all
applicable charges associated with the move, including the reinstallation of
its equipment and facilities and the preparation of the new Premises and the
new wire center as applicable.
In either such event, the new premises shall be deemed the "Premises"
hereunder and the new wire center the "Building."
1.3 The Premises. SWBT agrees, at the Interconnector's sole cost and
expense as set forth herein, to prepare the Premises in accordance with working
drawings and specifications entitled ______________ and dated ______________,
which documents, marked Exhibit __, are attached and incorporated herein. The
preparation shall be arranged by SWBT in compliance with all applicable codes,
ordinances, resolutions, regulations and laws. After the Interconnector has
made the initial payments required by Section 4.4 and the state regulatory
approval is obtained in accordance with Section 2.1 hereof, SWBT agrees to
pursue diligently the preparation of the Premises for use by the
Interconnector.
ARTICLE II - EFFECTIVENESS AND REGULATORY APPROVAL
2.1 Submission to State Commission. The effectiveness of this Agreement
is conditioned upon the unqualified approval of this Agreement, whether as a
result of an approval process or by operation of law, under 47 U.S.C.
252(a)(1). After execution of this Agreement, the parties shall submit it to
the State commission for the State in which the Premises is located as thereby
required for approval, and shall defend the Agreement and support any
reasonable effort to have this Agreement so approved,
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including the supplying of witnesses and testimony if a hearing is to be held.
2.2 Failure to Receive Approval. In the event that this Agreement does
not receive such unqualified approval, this Agreement shall be void upon
written notice of either party to the other after such regulatory action
becomes final and unappealable. Thereafter Interconnector may request to begin
negotiations again under 47 U.S.C. 251. Alternatively, the parties may both
agree to modify this Agreement to receive such approval, but neither shall be
required to agree to any modification. Any agreement to modify shall not waive
the right of either party to pursue any appeal of the ruling made by any
reviewing regulatory commission.
2.3 Preparation Prior to Regulatory Approval. At the written election of
the Interconnector, SWBT shall begin preparing the Premises for the
Interconnector prior to receiving the approval required by Section 2.1 hereof.
The sole evidence of such election shall be the payment to SWBT of the initial
payments specified in Sections 4.4. Payment to SWBT of the remaining charges
under these Sections shall be due upon completion. Upon such an election, this
Agreement shall become effective but only insofar as to be applicable to the
Premises preparation. In the event that the Agreement does not become fully
effective as contemplated by this Article, the Interconnector shall not be
entitled to any refund or return of any such payments beyond any portion of the
charges paid but not attributable to costs incurred by SWBT. To the extent that
SWBT has incurred preparation costs not included within any payment made by the
Interconnector, the Interconnector shall pay those costs within thirty (30) days
of notice by SWBT.
ARTICLE III - TERM
3.1 Commencement Date. This Agreement shall be month-to-month, beginning
on the "Commencement Date." The "Commencement Date" shall be the first day
after this Agreement becomes effective in accordance with Article II hereof.
3.2 Occupancy. Unless there are unusual circumstances, SWBT will notify
the Interconnector
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that the Premises is ready for occupancy within ____ days after receipt of the
payments due under Sections 4.4. The Interconnector must place operational
telecommunications equipment in the Premises and connect with SWBT's network
within sixty (60) days after receipt of such notice; provided, however, that
such 60-day period shall not begin until regulatory approval is obtained under
Article II. If the Interconnector fails to do so, this Agreement is terminated
except that the Interconnector shall be liable in an amount equal to the unpaid
balance of the charges due under and, further, shall continue to be bound by
Articles II, IV, XI, XIV, XV, XVII, XVIII, XX, XXI, XXVI and XXVII hereof. For
purposes of this Section, the Interconnector's telecommunications equipment is
considered to be operational and interconnected when connected to SWBT's network
for the purpose of providing service.
ARTICLE IV - PREMISES CHARGES
4.1 Monthly Charges. Beginning on the Commencement Date, Interconnector
shall pay to SWBT a charge of ______ Dollars ($___) per month for use of the
Premises. The monthly charge may be increased upon thirty (30) days' notice by
SWBT.
4.2 Billing. Billing shall occur on or about the 25th day of each month,
with payment due thirty (30) days from the xxxx date. SWBT may change its
billing date practices upon thirty (30) days notice to the Interconnector.
4.3 Preparation Charge. (a) The one-time charge for preparing the
Premises for use by the Interconnector is estimated to be ___________ Dollars
($XXX.XX) ("Preparation Charge"), which consists of two components: (i) the
charge to the Interconnector associated with modifying the Building to provide
physical collocation ("Common Charge"), and (ii) the charge associated with
preparing the Premises ("Premises Charge"). Of the Preparation Charge
___________ Dollars ($XXX.XX) is the estimate for subcontractor charges
("Subcontractor Charges").
(b) SWBT will contract for and perform the construction and preparation
activities underlying the
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Preparation Charge, including the Common Charge, the Premises Charge, and the
Subcontractor Charges, and any Custom Work charges, using same or consistent
practices that are used by SWBT for other construction and preparation work
performed in the Building. Subject to an appropriate nondisclosure agreement,
SWBT will permit the Interconnector to inspect supporting documents for the
Preparation Charge, including the Common Charge (if the Interconnector is the
initial physical collocator as used in Section 4.5(b)) and the Premises
Charge, and any Custom Work charge. Any dispute regarding such SWBT charges
will be subject to the dispute resolution provisions hereof.
4.4 Payment of Premises Charge. Prior to any obligation on SWBT to start
any preparation of the Premises, the Interconnector shall pay SWBT fifty
percent (50%) of the Premises Charge and eighty-five percent (85%) of any
custom work charge required to create or vacate any entrance facility for the
Interconnector ("Custom Work"), and shall be due no later than ten (10)
business days after the Agreement has become effective in accordance with
Article II hereof. The remainder of the Premises Charge and any Custom Work
charge are due upon completion and prior to occupancy by the Interconnector.
4.5 Payment of Common Charge. (a) In addition and prior to any obligation
on SWBT to start any preparation of the Building for physical collocation, the
Interconnector shall pay SWBT fifty percent (50%) of the Common Charge. The
other fifty percent (50%) of the Common Charge is due upon completion and prior
to occupancy by the Interconnector.
(b) The first entity to which SWBT provides physical collocation in the
Building shall be responsible for all costs incurred by SWBT associated with
the preparation of the Building to provide physical collocation in the initial
space where physical collocation is to be located ("Initial Common Charge").
Thereafter the Initial Common Charge will be prorated and the prorated share
refunded to the previous physical collocator(s) as additional entities use
physical collocation in the Building within twelve (12) months of the first
billing date of the initial monthly charge for the first physical collocator in
the Building, using the following schedule:
000
-0-
Xxxxxxxxxx Xxxxxxx Xxxxxx Charge Refund
-------------- --------------------- ---------
1st 100% NA
2nd 50% 50%
3rd 33 1/3% 16 2/3%
4th 25% 8 1/3%
5th and beyond 0% 0%
To the extent that a physical collocator uses a space other than such initial
space, SWBT shall refund to the Interconnector the portion of the Initial
Common Charge applicable to such collocator based on the relative use of such
initial space in a manner consistent with the above methodology and other terms
of this Agreement.
(c) No interest will be paid on refunds. Refunds shall be based on the
Initial Common Charge actually paid by the first physical collocator.
(d) Notwithstanding the above, SWBT shall have no obligation to remit any
amount that would result in SWBT being unable to retain the full amount of the
Initial Common Charge or to remit any amount based upon charges not actually
collected.
4.6 Payment of Preparation Charge. SWBT is not obligated to start any
preparation of the Premises until the Interconnector pays SWBT fifty percent
(50%) of the Preparation Charge and eighty-five percent (85%) of the charges
for any Custom Work charge. Such charges shall be due no later than ten (10)
business days after the Agreement has become effective in accordance with
Article II hereof. The remainder of the Preparation Charge and any Custom Work
charge are due upon completion and prior to occupancy by the Interconnector.
4.7 Occupancy Conditioned on Payment. SWBT shall not permit the
Interconnector to have access to the Premises for any purpose other than
inspection until SWBT is in receipt of complete payment of the Preparation
Charge and any Custom Work charges.
4.8 Subcontractor Charges. Within one hundred twenty (120) days of the
completion date of the Premises, SWBT shall perform a true-up of all
Subcontractor Charges using the actual amounts billed
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by subcontractors. Any amounts incurred above the Subcontractor Charges will be
billed to the Interconnector or, alternatively, any amount below such Charges
will be remitted to the Interconnector.
4.9 Breach Prior to Commencement Date. In the event that the
Interconnector materially breaches this Agreement by purporting to terminate
this Agreement after SWBT has begun preparation of the Premises but before SWBT
has been paid the entire amounts due under this Article, then in addition to
any other remedies that SWBT might have, the Interconnector shall be liable in
the amount equal to the non-recoverable costs less estimated net salvage.
Non-recoverable costs include the non-recoverable cost of equipment and
material ordered, provided or used; trued-up Subcontractor Charges, the
non-recoverable cost of installation and removal, including the costs of
equipment and material ordered, provided or used; labor; transportation and any
other associated costs.
4.10 Late Payment Charge. In the event that any charge is not paid when
due, the unpaid amounts shall bear interest in accordance with the terms and
conditions set forth in SWBT's intrastate tariff late payment provision(s)
applicable to access services for the State in which the Premises is located,
or the highest rate permitted by law, whichever is lower, from the due date
until paid.
ARTICLE V - INTERCONNECTION CHARGES
5.1 Charges for interconnection shall be as set forth in any
interconnection agreement between SWBT and the interconnector and any
applicable tariffs.
ARTICLE VI - FIBER OPTIC CABLE AND DEMARCATION POINT
6.1 Fiber Entrances. The Interconnector shall use a single mode
dielectric fiber optic cable as a transmission medium to the Premises. The
Interconnector shall be permitted no more than two (2) entrance routes into the
Building, if available.
6.2 Demarcation Point. SWBT shall designate the point(s) of termination
within the Building as the point(s) of physical demarcation between the
Interconnector's network and SWBT's network, with
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each being responsible for maintenance and other ownership obligations and
responsibilities on its side of that demarcation point. SWBT anticipates that
the demarcation point will be within the point-of-termination frame.
ARTICLE VII - USE OF PREMISES
7.1 Nature of Use. The Premises are to be used by the Interconnector for
purposes of locating equipment and facilities within SWBT's central offices
connect with SWBT services only. Consistent with the nature of the Building
and the environment of the Premises, the Interconnector shall not use the
Premises for office, retail, or sales purposes. No signage or markings of any
kind by the Interconnector shall be permitted on the Building or on the grounds
surrounding the Building.
7.2 Equipment List. A list of all of the Interconnector's equipment and
facilities that will be placed within the Premises is set forth on Exhibit __,
attached and incorporated herein, with the associated power requirements, floor
loading, and heat release of each piece. The Interconnector warrants and
represents that Exhibit __ is a complete and accurate list, and acknowledges
that any incompleteness or inaccuracy would be a material breach of this
Agreement. The Interconnector shall not place or leave any equipment or
facilities within the Premises beyond those listed on Exhibit __ without the
express written consent of SWBT.
7.2.1 Subsequent Requests to Place Equipment. In the event that
subsequent to the execution of this Agreement the Interconnector desires to
place in the Premises any equipment or facilities not set forth on Exhibit __,
the Interconnector shall furnish to SWBT a written list and description thereof
substantially in the form of Attachment A, which is attached and incorporated.
Thereafter, in its sole discretion, SWBT may provide such written consent or
may condition any such consent on additional charges arising from the request,
including any engineering design charges and any additional requirements such
as power and environmental requirements for such listed and described equipment
and/or facilities. Upon the execution by both parties of a final list and
description, including any
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applicable charges, this Agreement shall be deemed to have been amended to
include the terms and conditions of the final list and description.
7.2.2 Limitations. The foregoing imposes no obligation upon SWBT to
purchase additional plant or equipment, relinquish used or forecasted space or
facilities, or to undertake the construction of new quarters or to construct
additions to existing quarters in order to satisfy a subsequent request for
additional space or the placement of additional equipment or facilities.
7.3 Administrative Uses. The Interconnector may use the Premises for
placement of equipment and facilities only. The Interconnector's employees,
agents and contractors shall be permitted access to the Premises at all
reasonable times, provided that the Interconnector's employees, agents and
contractors comply with SWBT's policies and practices pertaining to fire, safety
and security. The Interconnector agrees to comply promptly with all laws,
ordinances and regulations affecting the use of the Premises. Upon the
expiration of the Agreement, the Interconnector shall surrender the Premises to
SWBT, in the same condition as when first occupied by the Interconnector,
ordinary wear and tear excepted.
7.4 Threat to Network or Facilities. Interconnector equipment or
operating practices representing a significant demonstrable technical threat to
SWBT's network or facilities, including the Building, are strictly prohibited.
7.5 Interference or Impairment. Notwithstanding any other provision
hereof, the characteristics and methods of operation of any equipment or
facilities placed in the Premises shall not interfere with or impair service
over any facilities of SWBT or the facilities of any other person or entity
located in the Building; create hazards for or cause damage to those
facilities, the Premises, or the Building; impair the privacy of any
communications carried in, from, or through the Building; or create hazards or
cause physical harm to any individual or the public. Any of the foregoing
events would be a material breach of this Agreement.
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7.6 Interconnection to Other Collocated Interconnectors Within the
Building To the extent that SWBT is required by law to permit such
interconnection, SWBT will provide the connection between physical collocation
arrangements on a time and materials basis whenever the collocated
interconnectors cannot for technical reasons provide the connection for
themselves by passing the facility through the cage wall(s). SWBT will provide
nothing more than the labor and physical structure(s) necessary for the
collocator(s) to pull facilities provided by one collocator from its cage to the
cage of another collocator. If the collocators are not located on the same floor
and cannot physically pull the cable themselves through the SWBT provided
structure(s), SWBT will perform the cable pull on an time and materials basis.
At no time will the collocators be allowed access to any portion of the central
office other than the collocation area. SWBT will not make the physical
connection within the collocator's cage, SWBT will not accept any liability for
the cable or the connections and SWBT will not maintain any records concerning
these connections.
7.7 Personality and its Removal. Subject to this Article, the
Interconnector may place or install in or on the Premises such fixtures and
equipment as it shall deem desirable for the conduct of business. Personal
property, fixtures and equipment placed by the Interconnector in the Premises
shall not become a part of the Premises, even if nailed, screwed or otherwise
fastened to the Premises, but shall retain their status as personality and may
be removed by Interconnector at any time. Any damage caused to the Premises by
the removal of such property shall be promptly repaired by Interconnector at
its expense.
7.8 Alterations. In no case shall the Interconnector or any person
purporting to be acting through or on behalf of the Interconnector make any
rearrangement, modification, improvement, addition, repair, or other alteration
to the Premises or the Building without the advance written permission and
direction of SWBT. SWBT shall consider a modification, improvement, addition,
repair, or other alteration requested by the Interconnector, provided that SWBT
shall have the right to reject or modify
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any such request. The cost of any such construction shall be paid by
Interconnector in accordance with SWBT's then-standard custom work order
process.
ARTICLE VIII - STANDARDS
8.1 Minimum Standards. This Agreement and the physical collocation
provided hereunder is made available subject to and in accordance with the (i)
Bellcore Network Equipment Building System (NEBS) Generic Requirements
(GR-63-CORE and GR-1089-CORE), as may be amended at any time and from time to
time, and any successor documents; (ii) SWBT's Technical Publication for
Physical Collocation dated _____, 1996, as may be amended from time to time;
(iii) SWBT's Technical Publication 76300, Installation Guide, followed in
installing network equipment and facilities within SWBT central offices, as may
be amended from time to time; (iv) SWBT's Emergency Operating Procedures, as may
be amended from time to time; and (v) any statutory and/or regulatory
requirements in effect at the execution of this Agreement or that subsequently
become effective and then when effective. The Interconnector shall strictly
observe and abide by each.
8.2 Revisions. Any revision to SWBT's Technical Publication for Physical
Collocation, its Technical Publication 76300, or its Emergency Operating
Procedures shall become effective and thereafter applicable under this
Agreement thirty (30) days after such revision is released by SWBT; provided,
however, that any revision made to address situations potentially harmful to
SWBT's network or the Premises, or to comply with statutory and/or regulatory
requirements shall become effective immediately.
8.3 Compliance Certification. The Interconnector warrants and represents
compliance with the Bellcore Network Equipment Building System (NEBS) Generic
Requirements (GR-63-CORE and GR-1089-CORE) for each item set forth on Exhibit
___. The Interconnector also warrants and represents that any equipment or
facilities that may be placed in the Premises pursuant to Section 7.2.1 or
otherwise shall be so compliant. DISCLOSURE OF ANY NON-COMPLIANT ITEM ON
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EXHIBIT __, PURSUANT TO SECTION 7.2.1, OR OTHERWISE SHALL NOT QUALIFY THIS
ABSOLUTE CERTIFICATION IN ANY MANNER.
ARTICLE IX - RESPONSIBILITIES OF THE INTERCONNECTOR
9.1 Contact Number. The Interconnector is responsible for providing to
SWBT personnel a contact number for Interconnector technical personnel who are
readily accessible 24 hours a day, 7 days a week.
9.2 Trouble Status Reports. The Interconnector is responsible for
providing trouble report status when requested by SWBT.
9.3 Optical Fiber Extension. The Interconnector is responsible for
bringing its fiber optic cable to the wire center entrance manhole(s)
designated by SWBT, and for leaving sufficient cable length in order for SWBT
to fully extend the Interconnector-provided cable through the cable vault to
the Premises.
9.4 Regeneration. Regeneration of either DS1 or DS3 signal levels may be
provided by the Interconnector, or SWBT under its then-standard custom work
order process, including payment requirements prior to the installation of the
regeneration equipment.
9.5 Removal. The Interconnector is responsible for removing any
equipment, property or other items that it brings into the Premises or any other
part of the Building. If the Interconnector fails to remove any equipment,
property, or other items from the Premises within thirty (30) days after
discontinuance of use, SWBT may perform the removal and shall charge the
Interconnector for any materials used in any such removal, and the time spent on
such removal at the then-applicable hourly rate for custom work. Further, in
addition to the other provisions herein, the Interconnector shall indemnify and
hold SWBT harmless from any and all claims, expenses, fees, or other costs
associated with any such removal by SWBT.
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9.6 Interconnector's Equipment and Facilities. The Interconnector is
solely responsible for the design, engineering, testing, performance, and
maintenance of the equipment and facilities used by the Interconnector in the
Premises. The Interconnector will be responsible for servicing, supplying,
repairing, installing and maintaining the following facilities within the
Premises:
(a) its fiber optic cable(s);
(b) its equipment;
(c) required point of termination cross connects;
(d) point of termination maintenance, including replacement of fuses and
circuit breaker restoration, if and as required; and
(e) the connection cable and associated equipment which may be required
within the Premises to the point(s) of termination.
SWBT NEITHER ACCEPTS NOR ASSUMES ANY RESPONSIBILITY WHATSOEVER IN ANY OF THESE
AREAS.
9.7 Verbal Notifications Required. The Interconnector is responsible for
immediate verbal notification to SWBT of significant outages or operations
problems which could impact or degrade SWBT's network, switches, or services,
and for providing an estimated clearing time for restoral. In addition,
written notification must be provided within twenty-four (24) hours.
9.8 Service Coordination. The Interconnector is responsible for
coordinating with SWBT to ensure that services are installed in accordance with
the service request.
9.9 Testing. The Interconnector is responsible for testing, to identify
and clear a trouble when the trouble has been isolated to an
Interconnector-provided facility or piece of equipment. If SWBT testing is
also required, it will be provided at charges specified in SWBT's F.C.C. No.
73, Section 13.
ARTICLE X- QUIET ENJOYMENT
Subject to the other provisions hereof, SWBT covenants that it has full
right and authority to
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permit the use of the Premises by the Interconnector and that, so long as the
Interconnector performs all of its obligations herein, the Interconnector may
peaceably and quietly enjoy the Premises during the term hereof.
ARTICLE XI - ASSIGNMENT
The Interconnector shall not assign or otherwise transfer this Agreement,
neither in whole nor in part, or permit the use of any part of the Premises by
any other person or entity, without the prior written consent of SWBT. Any
purported assignment or transfer made without such consent shall be voidable at
the option of SWBT. The Interconnector shall not permit any third party to
jointly occupy the Premises.
ARTICLE XII - CASUALTY LOSS
12.1 Damage to Premises. If the Premises are damaged by fire or other
casualty, and
(i) The Premises are not rendered untenantable in whole or in
part, SWBT shall repair the same at its expense (as hereafter
limited) and the rent shall not be abated, or
(ii) The Premises are rendered untenantable in whole or in part
and such damage or destruction can be repaired within ninety (90)
days, SWBT has the option to repair the Premises at its expense (as
hereafter limited) and rent shall be proportionately abated while
Interconnector was deprived of the use. If the Premises cannot be
repaired within ninety (90) days, or SWBT opts not to rebuild, then
this Agreement shall (upon notice to the Interconnector within
thirty (30) days following such occurrence) terminate as of the date
of such damage.
Any obligation on the part of SWBT to repair the Premises shall be limited to
repairing, restoring and rebuilding the Premises as originally prepared for the
Interconnector and shall not include any obligation to repair, restore, rebuild
or replace any alterations or improvements made by the
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Interconnector or by SWBT on request of the Interconnector; or any fixture or
other equipment installed in the Premises by the Interconnector or by SWBT on
request of the Interconnector.
12.2. Damage to Building. In the event that the Building shall be so
damaged by fire or other casualty that closing, demolition or substantial
alteration or reconstruction thereof shall, in SWBT's opinion, be advisable,
then, notwithstanding that the Premises may be unaffected thereby, SWBT, at its
option, may terminate this Agreement by giving the Interconnector ten (10) days
prior written notice within thirty (30) days following the date of such
occurrence, if at all possible.
ARTICLE XIII - RE-ENTRY
If the Interconnector shall default in performance of any agreement
herein, and the default shall continue for thirty (30) days after receipt of
written notice, or if the Interconnector is declared bankrupt or insolvent or
makes an assignment for the benefit of creditors, SWBT may, immediately or at
any time thereafter, without notice or demand, enter and repossess the
Premises, expel the Interconnector and any claiming under the Interconnector,
remove the Interconnector's property, forcibly if necessary, and thereupon this
Agreement shall terminate, without prejudice to any other remedies SWBT might
have.
SWBT may also refuse additional applications for service and/or refuse to
complete any pending orders for additional space or service by the
Interconnector at any time thereafter.
ARTICLE XIV - LIMITATION OF LIABILITY
14.1 Limitation. With respect to any claim or suit for damages arising in
connection with the mistakes, omissions, interruptions, delays or errors, or
defects in transmission occurring in the course of furnishing service hereunder,
the liability of SWBT, if any, shall not exceed an amount equivalent to the
proportionate monthly charge to the Interconnector for the period during which
such mistake, omission, interruption, delay, error, or defect in transmission or
service occurs and continues.
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However, any such mistakes, omissions, interruptions, delays, errors, or
defects in transmission or service which are caused or contributed to by the
negligence or willful act of the Interconnector or which arise in connection
with the use of the Interconnector-provided facilities or equipment shall not
result in the imposition of any liability whatsoever upon SWBT.
Neither party shall be responsible to the other for any indirect, special,
consequential, lost profit, or punitive damages, whether in contract or tort.
Each party shall be indemnified and held harmless by the other against
claims and damages by any third party arising from provision of the other
party's services or equipment except those claims and damages directly
associated with the provision of services to the other party which are governed
by the provisioning party's applicable tariffs.
Neither party shall have any liability whatsoever to the customers of the
other party for claims arising from the provision of the other party's service
to its customers, including claims for interruption of service, quality of
service or billing disputes.
The liability of either party for its willful misconduct, if any, is not
limited by this Agreement. With respect to any other claim or suit, by a
customer or by any others, for damages associated with the installation,
provision, preemption, termination, maintenance, repair or restoration of
service, SWBT's liability, if any, shall not exceed an amount equal to the
proportionate monthly charge for the affected period.
SWBT shall not be liable for any act or omission of any other carrier or
customer providing a portion of a service, nor shall SWBT for its own act or
omission hold liable any other carrier or customer providing a portion of a
service.
When the Interconnector is provided service under this Agreement, SWBT
shall be indemnified, defended and held harmless by the Interconnector against
any claim, loss or damage arising from the customer's use of services offered
under this Agreement, involving:
(1) Claims for libel, slander, invasion of privacy, or
infringement of copyright arising from the
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(j) Applicant and persons acting on Applicant's behalf are encouraged
to report unsafe conditions on, within, or in the vicinity of
SWBT's poles or conduit system to SWBT.
(k) Applicant shall establish sufficient controls and safeguards to
assure compliance with all provisions of this section.
6.10 Specific Requirements Relating to Personnel, Equipment, Materials, and
Construction Practices Within or in the Vicinity of SWBT's Conduit Systems. When
Applicant, its contractors, and other persons acting on Applicant's behalf
perform work for Applicant within or in the vicinity of SWBT's ducts, conduits,
and rights-of-way where such ducts or conduits are located, they will be guided
by the following:
(a) Except as may be mutually agreed upon by the parties in writing,
Applicant shall not "rod" or clear any duct or inner duct in
SWBT's conduit system other than a duct or inner duct assigned to
Applicant. Following the assignment of a specific duct or inner
duct to Applicant, Applicant may request that SWBT rod or clear
the duct or inner duct. If the duct or inner duct cannot be
cleared, SWBT will assign the next available duct or inner duct
to Applicant. Applicant's request for assignment of the next
available duct shall be in writing, may be transmitted to SWBT
via fax or other transmission media mutually agreed upon by the
parties, and shall be processed within the same intervals
applicable to the processing of similar requests by SWBT's own
personnel.
(b) Personnel performing work within SWBT's conduit system on either
party's behalf shall not climb on, step on, or otherwise disturb
the cables, air pipes, equipment, or other facilities located in
any manhole or other part of SWBT's conduit system.
(c) Personnel performing work within or in the vicinity of SWBT's
conduit system (including any manhole) on either party's behalf
shall, upon completing their work, make reasonable efforts to
remove all tools, unused materials, wire clippings, cable
sheathing and other materials brought by them to the work site.
(d) All of Applicant's facilities shall be firmly secured and
supported in accordance with Bellcore and industry standards and
any applicable construction standards adopted by SWBT and
applicable to SWBT's own facilities.
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(e) Applicant's facilities shall be plainly identified with
Applicant's name in each manhole with a firmly affixed permanent
tag that meets the identification standards set by SWBT for its
own facilities.
(f) Manhole pumping and purging required in order to allow
Applicant's work operations to proceed shall be performed by
Applicant or its contractor in accordance with the requirements
of Sections 6.14 and 6.15 of this Agreement.
(g) Planks or other types of platforms shall be supported only by
cable racks.
(h) Any leak detection liquid or device used by Applicant or
personnel performing work on Applicant's behalf within or in the
vicinity of SWBT's conduit system shall be of a type approved by
SWBT and included on SWBT's then-current list of approved types
of leak-detection liquids and devices; provided, however, that
Applicant may use any type of leak detection liquid or device
which meets Bellcore's published standards if SWBT has not
provided Applicant SWBT's list of approved types of leak
detection liquids or devices at least 60 days in advance of
Applicant's work.
(i) Applicant and its contractors shall be responsible for providing
proper ventilation while work is being performed in SWBT's
conduit system on Applicant's behalf. Except for protective
screens, no temporary cover shall be placed over an open manhole
unless it is at least four feet above the surface level of the
manhole opening.
(j) Smoking or the use of any open flame is prohibited in manholes,
in any other portion of the conduit system, or within 10 feet of
any open manhole entrance.
(k) Artificial lighting, when required by Applicant, will be provided
by Applicant. Only explosion-proof lighting fixtures shall be
used.
(l) Neither Applicant nor personnel performing work on Applicant's
behalf shall allow any combustible gas, vapor, liquid, or
material to accumulate in SWBT's conduit system (including any
manhole) during work operations performed within or in the
vicinity of SWBT's conduit system.
(m) Applicant shall comply with the standards set by SWBT for its own
personnel restricting the use of spark producing tools,
equipment, and devices (including but not limited to such tools
as electric drills and hammers, meggers, breakdown sets,
induction sets, and the like) in
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manholes and other portions of SWBT's conduit system, provided
that such standards have been communicated in writing to
Applicant at least 60 days in advance of the construction,
installation, or placement of Applicant's facilities within
SWBT's conduit system.
(n) Cable lubricants used in conduit systems shall be of a type or
types approved by SWBT and included on SWBT's then-current list
of approved types of cable lubricants; provided, however, that
Applicant may use any type of cable lubricant which meets
Bellcore's published standards if SWBT has not provided Applicant
SWBT's list of approved types of cable lubricants at least 60
days in advance of Applicant's work.
6.11 Opening of Manholes and Access to Conduit. The following requirements
apply to the opening of SWBT's manholes and access to SWBT's conduit system.
(a) Applicant will notify SWBT not less than 48 hours in advance
before entering SWBT's conduit system to perform non-emergency
work operations. Such operations shall be conducted during normal
business hours except as otherwise agreed by the parties. The
notice shall state the general nature of the work to be
performed. As a courtesy, Applicant shall, when feasible, provide
SWBT with 10 working days advance notice before entering SWBT's
conduit system. SWBT shall, within 10 working days after the
effective date of this Agreement, advise Applicant of the manner
in which notices required by this section shall be given.
(b) An authorized employee or representative of SWBT may be present
as a construction inspector at any time when Applicant or
personnel acting on Applicant's behalf enter or perform work
within SWBT's conduit system. Such inspectors may inspect the
performance and quality of the work and monitor the work for
compliance with the terms, conditions, and specifications of this
Agreement or, in the case of facilities modification, capacity
expansion or make-ready work, the plans and specifications of the
facilities modification, capacity expansion, or make-ready
project. When SWBT inspectors are present, Applicant and its
contractors shall have sole authority, responsibility, and
control over the method or manner by which the work is to be
performed. SWBT's inspectors may call violations to Applicant's
attention but shall have no authority to direct or advise
Applicant or personnel acting on Applicant's behalf concerning
the method or manner by which the work is to be performed;
provided, however, that nothing contained in this subsection
shall relieve Applicant from complying with any requirements of
this Agreement.
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(c) The parties contemplate that Applicant may need to perform
operations in SWBT's conduit system other than during normal
business hours and may on occasion require access to manholes on
shorter notice than contemplated in subsection (a) above. Under
these circumstances, Applicant shall notify SWBT as soon as is
reasonably possible of its intent to enter and perform work in
the conduit system and SWBT shall not, without due cause and
justification, insist on literal compliance with scheduling
requirements of subsection (a). SWBT will establish procedures
enabling SWBT to receive notices from Applicant under this
subsection 24 hours a day, seven days a week.
(d) Each party must obtain any necessary authorization from
appropriate authorities to open manholes for such party's own
conduit work and operations therein.
(e) Applicant shall reimburse SWBT for costs associated with the
presence of construction inspectors only as specified in APPENDIX
I and only as permitted by applicable laws, rules, regulations,
and commission orders. SWBT shall not charge Applicant for more
than one such construction inspector per site at any given time.
(f) If the presence of SWBT personnel at the site is requested by
Applicant or, in Applicant's opinion, is integral to successful
completion of the work, Applicant shall pay the costs of having
such personnel present.
6.12 OSHA Compliance. The parties agree that:
(a) facilities attached to SWBT's poles or placed in SWBT's ducts,
conduits, and rights-of-way shall be constructed, placed,
maintained, repaired, and removed in accordance with the
Occupational Safety and Health Act (OSHA) and all rules and
regulations promulgated thereunder;
(b) all persons acting on such party's behalf shall, when working on,
within, or in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way, comply with OSHA and all rules and regulations
thereunder; and
(c) Applicant shall establish appropriate procedures and controls to
assure compliance with all requirements of this section.
6.13 Hazardous Substances. Applicant acknowledges that, from time to time,
hazardous substances (as defined in Section 3.19 of this Agreement) may enter
SWBT's conduit system and accumulate in manholes or other conduit facilities and
that hazardous substances may be present at other sites where SWBT's poles,
ducts, conduits, or rights-of-way are located.
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(a) Applicant may, at its expense, perform such inspections and tests
at the site of any pole, duct, conduit, or right-of-way occupied
by or assigned to Applicant as Applicant may deem necessary to
determine the presence at such sites of hazardous substances.
SWBT will assist Applicant, at Applicant's request and expense,
in the performance of such inspections and tests.
(b) SWBT makes no representations to Applicant or personnel
performing work on Applicant's behalf that SWBT's poles, ducts,
conduits, or rights-of-way will be free from hazardous substances
at any particular time. Before entering a manhole or performing
any work within or in the vicinity of SWBT's conduit system or
any other site subject to access under this Agreement, Applicant
or personnel acting on Applicant's behalf shall independently
determine, to their satisfaction, whether such hazardous
substances are present and conduct their work operations
accordingly.
(c) Each party shall promptly notify the other of hazardous
substances known by such party to be present within or in the
vicinity of poles, ducts, conduits, or rights-of-way occupied by
or assigned to Applicant pursuant to this Agreement if, in the
sole judgment of such party, such hazardous substances create a
serious danger to (1) the health or safety of personnel working
within or in the vicinity of the conduit or (2) the physical
condition of the other party's facilities placed or to be placed
within the conduit.
(d) Nothing contained in this Agreement (including but not limited to
the acknowledgments and representations set forth in this
section) shall relieve either party from its responsibility to
comply with all applicable environmental laws or its
responsibility for any liability arising out of such party's
failure to comply with such laws. Nothing contained in this
Agreement shall be construed as relieving SWBT of liability for
hazardous substances present at any site subject to this
Agreement or as relieving either party of liability for
introducing hazardous substances to the site or causing or
contributing to the release of any such substances. Failure to
comply with the requirements of this section may, however, be
considered in determining issues relating to negligence,
causation of injury, and comparative responsibility for injuries
to persons, property, and the environment.
6.14 Compliance with Environmental Laws and Regulations. Applicant and SWBT
agree to comply with the following provisions relating to compliance with
environmental laws and regulations.
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(a) Facilities attached to SWBT's poles or placed in SWBT's ducts,
conduits, and rights-of-way following the effective date of this
Agreement shall be constructed, placed, maintained, repaired, and
removed in accordance with all applicable federal, state, and
local environmental statutes, ordinances, rules, regulations, and
other laws.
(b) All persons acting on Applicant's or SWBT's behalf, including but
not limited to the parties' employees, agents, contractors, and
subcontractors, shall, when working on, within or in the vicinity
of SWBT's poles, ducts, conduits, or rights-of-way, comply with
all applicable federal, state, and local environmental laws,
including but not limited to all environmental statutes,
ordinances, rules, and regulations. Applicant and personnel
acting on Applicant's behalf are expected to be familiar with
their obligations under environmental laws such as the
Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. ss. 9601 et seq.), the Toxic Substance Control Act
(15 U.S.C. ss. 2601-2629), the Clean Water Act (33 U.S.C. ss.
1251 et seq.), and the Safe Drinking Water Act (42 U.S.C. ss.
300f-300j).
(c) The parties shall each establish appropriate procedures and
controls to assure compliance with all requirements of this
section.
(d) From and after the effective date of this Agreement, neither
party nor personnel acting on either party's behalf shall
discharge or release hazardous substances onto or from the site
of any SWBT pole, duct, conduit, or right-of-way. Neither
Applicant nor SWBT nor personnel acting on either party's behalf
shall discharge water or any other substance from any SWBT
manhole or other conduit facility onto public or private
property, including but not limited to any storm water drainage
system, without first determining that such discharge would not
violate any environmental law, create any environmental risk or
hazard, or damage the property of any person. Applicant will be
expected to test such water or substance for hazardous substances
in accordance with then-applicable SWBT standards and practices.
(e) Applicant and SWBT and all personnel performing work on
Applicant's or SWBT's behalf shall, when working on, within, or
in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way, comply with such additional standards, practices,
and requirements as SWBT may from time to time adopt to comply
with environmental laws, provided that such standards are
communicated in writing to Applicant at least 60 days in advance
of Applicant's work.
6.15 Compliance with Other Governmental Requirements (Including
Aeronautical Navigation Safeguards). Facilities attached to SWBT's poles or
placed in
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SWBT's ducts, conduits, and rights-of-way shall be constructed, placed,
maintained, repaired, and removed in accordance with the ordinances, rules, and
regulations of any governing body having jurisdiction of the subject matter
(including but not limited to any valid ordinances, rules, and regulations
requiring permits, certificates, licenses or the like). Applicant and SWBT shall
comply with all statutes, ordinances, rules, regulations, and other laws
requiring the marking and lighting of aerial wires, cables, and other structures
to ensure that such wires, cables, and structures are not a hazard to
aeronautical navigation.
6.16 Differences in Specifications. To the extent that there may be
differences in the specifications, the most stringent specification will apply
except as otherwise specifically provided by SWBT in writing. Applicant will
consult with SWBT when Applicant is uncertain as to which specification is to be
followed.
6.17 Responsibility for the Condition of Facilities. Each party will be
responsible at all times for the condition of its facilities (including but not
limited to those extending from SWBT's poles, ducts, conduits, or rights-of-way
directly to any other location) and for its compliance with the requirements and
specifications of this article and all applicable laws, rules, regulations, and
ordinances.
ARTICLE 7: PRIMARY POINTS OF CONTACT, ACCESS TO RECORDS,
AND PRE-OCCUPANCY INSPECTIONS
7.01 Designation of Primary Points of Contact. Each party will, at the
request of the other party, designate a primary point of contact to facilitate
communications between the parties and the timely processing of Applicant's
applications for access to SWBT's poles, ducts, conduits, and rights-of-way
located within this State. Designations of primary points of contact will be
made by written notices including the name, title, address, phone number, and
fax number of the person designated as the primary point of contact; provided,
however, that unless and until a different designation is made, SWBT's primary
point of contact shall be the Utility Liaison Supervisor identified in APPENDIX
VIII. Designation of primary points of contact pursuant to this section will not
affect notice requirements or other legal requirements set forth in other
provisions of this Agreement.
7.02 Determinations by Applicant of Suitability and Availability. Applicant
shall make its own, independent assessment of the suitability of SWBT's poles,
ducts, conduits, and rights-of-way for Applicant's intended purposes.
7.03 Access to Records Relating to SWBT's Poles, Ducts, Conduits, and
Rights-of-Way. This section establishes procedures through which certain records
and information relating to SWBT's poles, ducts, conduits, and rights-of-way
will be made available to Applicant for planning and other purposes. Access to
such records and information will be conditioned on Applicant's execution of a
nondisclosure agreement equivalent in substance to the Nondisclosure Agreement
attached to this Agreement as
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APPENDIX V or such other nondisclosure agreement as shall be mutually acceptable
to the parties, and no person acting on Applicant's behalf will be granted
access to such records and information without first signing such a
nondisclosure agreement. Applicant will reimburse SWBT for all reasonable costs
incurred by SWBT in granting Applicant's requests for access to records and
information under this section.
(a) Applicant may, at any time after the effective date of this
Agreement, request permission to inspect SWBT's pole and conduit
maps and records, cable plat maps, and other plant location
records, if any, recording or logging assignments of pole, duct,
and conduit space. Applicant will be permitted to examine these
records during regular business hours at a location where copies
of such records are maintained or at such other location as may
be mutually agreed upon by the parties. Access to such maps and
records will be by appointment only, and SWBT will make such maps
and records available for inspection by Applicant on two business
days advance notice; provided, however, that Applicant will, as a
courtesy, when feasible, provide SWBT with 10 business days
advance notice of its intent to examine such records.
(b) The access described in subsection (a) shall include the right to
make copies, at Applicant's expense, except for cable plat maps,
which shall be made available for inspection only. In all
instances, such access shall include the ability to take notes
and make drawings with references to those maps and records. No
references to cable counts or circuit information may be included
in any such copies, notes, or drawings. With respect to other
cable-specific or customer-specific information, Applicant's
copies, notes, or drawings may include only such information as
needed for bona fide engineering and construction purposes (e.g.,
proposing cable consolidations and identifying plant
discrepancies) and not for sales, marketing, competitive
intelligence, competitive analysis, strategic planning, and
similar activities. Applicant's copies, notes, and drawings may
include estimates regarding the physical characteristics (such as
size and weight) of cables when necessary to make engineering
determinations regarding the capacity, safety, reliability, or
suitability of SWBT's poles, ducts, conduits, and rights-of-way
for Applicant's intended uses.
(c) SWBT will provide Applicant the best information available from
SWBT's current pole and conduit maps and records, cable plat
maps, and other outside plant and construction records. SWBT
represents that such records reflect approximate geographical
locations of the facilities depicted and may not accurately
reflect information such as:
(1) the exact location of the facilities depicted;
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(2) the physical size, characteristics, or condition of the
facilities depicted;
(3) the ducts or inner ducts presently occupied, assigned, or
available within any particular conduit segment or manhole;
(4) the arrangement of facilities attached to a pole, the
position of facilities suspended between poles or their
relationship to each other and to the ground, or the
positioning of cables and other facilities housed within
ducts, conduits, manholes or other portions of SWBT's conduit
system; and
(5) other information which must be assessed before it can be
determined that space is available on or in a pole, duct, or
conduit for the attachment or occupancy of Applicant's
facilities or that the poles, ducts, or conduits depicted are
suitable for Applicant's intended use.
7.04 Pre-occupancy Inspection of Poles, Ducts, Conduits, and Rights-of-Way.
Applicant shall be permitted to view and inspect specified poles, ducts,
conduits, and rights-of-way on a pre-occupancy basis as provided in this
section.
(a) After the effective date of this Agreement, Applicant may view
specified poles, ducts, conduits, and rights-of-way on a
pre-occupancy basis. Nothing contained in this section shall
preclude Applicant from visually inspecting SWBT's poles, ducts,
conduits, or rights-of-way from any vantage point lawfully
accessible to Applicant without SWBT's permission.
(b) Applicant shall not enter any SWBT manhole for the purpose of
performing a pre-occupancy inspection without complying with all
applicable requirements set forth in Article 6 of this Agreement,
including but not limited to the provisions of Section 6.11
relating to the opening of manholes.
ARTICLE 8: POLE, DUCT, AND CONDUIT SPACE ASSIGNMENTS
8.01 Selection of Space. Applicant will select the space Applicant will
occupy on SWBT's poles or in SWBT's conduit systems. Applicant's selections will
be based on the same criteria SWBT applies to itself. To enable Applicant to
make such selections in accordance with SWBT's criteria, SWBT will provide
Applicant information about the network guidelines and engineering protocols
used by SWBT in determining the placement of facilities on SWBT's poles and in
SWBT's conduit systems. In conduit systems owned or controlled by SWBT,
maintenance ducts (as defined in Section 3.25) shall not be considered available
for Applicant's use except as specifically provided
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elsewhere in this Agreement. All other ducts, inner ducts, sub-ducts, and
partitioned conduits which are not assigned or occupied shall be deemed
available for use by SWBT, Applicant, and third parties entitled to access under
the Pole Attachment Act.
8.02 Pole, Duct, and Conduit Space Assignments. Pole, duct, and conduit
space selected by Applicant will be assigned to Applicant as provided in this
section. Information received by SWBT in connection with this section shall be
subject to the provisions of Article 28 of this Agreement (Confidentiality of
Information).
(a) After Applicant's application for a pole attachment or conduit
occupancy license has been received by SWBT, the pole, duct, and
conduit space selected by Applicant in such application will be
assigned to Applicant for a pre-occupancy period not to exceed 12
months. The assignment (and date and time of assignment) will be
logged and recorded in the appropriate SWBT records. If such
space has been provisionally assigned to Applicant as authorized
below in subsection (b), the 12-month pre-occupancy assignment
period will begin on the date the provisional assignment is
recorded in SWBT's records or the date of SWBT's receipt of
Applicant's notice of intent to occupy under subsection (b),
whichever date first occurs.
(b) SWBT shall, within 60 days after the effective date of this
Agreement, adopt interim procedures which will enable pole, duct,
and conduit space to be provisionally assigned to Applicant and
other applicants prior to the submission of formal applications
required pursuant to Section 9.02 of this Agreement. Where
indicated below, the interim procedures will apply to the
assignment of space to SWBT as well as to Applicant and other
applicants. SWBT may, on 60 days advance notice to Applicant,
revise such interim procedures if such procedures prove to be
unworkable, in which event Applicant may challenge SWBT's
decision in accordance with procedures available to Applicant
under applicable federal and state laws and regulations. The
procedures will enable Applicant and other applicants, by written
notice, to advise SWBT of their intent to occupy unassigned space
which appears, from SWBT's records, to be available for
assignment. Upon receipt of such notice, SWBT shall date-and-time
stamp the notice and provisionally assign the space selected by
Applicant or such other applicant by logging and recording the
assignment (and date and time of assignment) in the appropriate
SWBT records, which records will be available for inspection as
provided in Section 7.03 of this Agreement. Space provisionally
assigned to Applicant or such other applicant will not be
available for assignment to any other person or entity, including
SWBT. Notwithstanding such provisional assignment, Applicant
shall not occupy such space without first obtaining a license,
except as provided in Section 8.03. The following additional
requirements shall apply.
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(1) Before giving SWBT notice of its intent to occupy unassigned
space, Applicant shall make a good faith determination that
it actually plans to occupy such space. The assignment
process shall not be used by either party for the purpose of
holding or reserving space which such party does not plan to
use or for the purpose of precluding SWBT or any other person
or entity from utilizing or having access to SWBT's poles,
ducts, conduits, or rights-of-way.
(2) With respect to unassigned conduit occupancy space, the
notice must include all information required to enable SWBT
and joint users, including other persons or entities which
may from time to time seek space in the same ducts and
conduits, to determine the specific space which Applicant
desires to occupy. The notice must, therefore, include, at a
minimum, the following information:
(i) the specific conduit sections, and each manhole, to be
occupied;
(ii) the number of ducts, and number of inner ducts, to be
occupied by Applicant within each conduit section;
(iii) the physical size (diameter) of the cables to be placed
in such duct, if known, or the maximum and minimum
sizes of the cables which may be placed if more than
one size cable is being considered for the space to be
occupied;
(iv) the anticipated use by Applicant of any infrequent
construction techniques and connectivity solutions
authorized under Section 6.03 to avoid high or unusual
expenditures;
(v) Applicant's best estimates of the dates when Applicant
plans to begin and complete construction at the sites
specified in the notice;
(vi) if applicable, a conspicuous statement that Applicant
intends to occupy the space before the issuance of a
license, as provided in Section 8.03 of this Agreement;
and
(vii) if applicable, a conspicuous statement, as required by
Section 5.06 of this Agreement, that the notice
pertains to a building entrance or building
distribution duct or conduit or other space within a
building.
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(3) With respect to unassigned pole space, such notice must
include all information required to enable SWBT and other
joint users, including other persons or entities seeking
space on the same poles, to determine the specific space
which Applicant desires to occupy. The notice must,
therefore, include, at a minimum, the following information:
(i) the specific poles to be occupied;
(ii) the specific space on each pole to be occupied,
including the height (distance from the ground) of the
attachment and the side (road or field) where the
attachment is to be made;
(iii) the anticipated number and types of cables to be
attached, together with the anticipated physical size
(diameter) and weight (weight per foot) of such cables,
and the anticipated number and types of strands, if
any, to be used to support the cables, such information
to be sufficient to give notice to SWBT and other joint
users of the remaining space on the pole available and
what facilities modification, capacity expansion, or
make-ready work may be required of subsequent
applicants as a result of the provisional assignment of
space to Applicant;
(iv) the anticipated use by Applicant of any infrequent
construction techniques and connectivity solutions
authorized under Section 6.03 to avoid high or unusual
expenditures;
(v) Applicant's best estimates of the dates when Applicant
plans to begin and complete construction at the sites
specified in the notice; and
(vi) if applicable, a conspicuous statement that Applicant
intends to occupy the space before the issuance of a
license, as provided in Section 8.03 of this Agreement.
(4) No later than 30 days after giving such notice, Applicant
shall file an application under Section 9.02 or the
provisional assignment will lapse.
(5) As stated in Section 7.03(c), SWBT does not represent that
its records accurately reflect the information necessary to
enable Applicant to rely upon a records-based assignment
process. SWBT shall have no duty to verify that space
provisionally assigned pursuant to this subsection is
actually available.
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(c) Assignments made prior to the issuance of a license will be
provisional assignments and will be subject to modification
if it is subsequently determined that the space selected by
or assigned to Applicant is already occupied or that a
different assignment is required to comply with SWBT's
standards for assigning pole, duct, and conduit occupancy
space.
(d) Applicant's obligation to pay semiannual pole attachment or
conduit occupancy fees will commence from the date of
assignment or provisional assignment, as logged and recorded
in the appropriate SWBT records.
(e) During the 12-month assignment period following the date
space is assigned to Applicant and entered into the
appropriate SWBT record, SWBT shall not occupy or use such
space without Applicant's permission, shall not assign such
space to any party other than Applicant, and shall not
knowingly permit any party other than Applicant to occupy or
use such space without Applicant's permission except as
otherwise specifically provided in this Agreement. The
assignment to Applicant will automatically lapse 12 months
after the date the assignment has been entered into the
appropriate SWBT record if Applicant has not occupied such
assigned space within such 12-month period; provided,
however, that if Applicant's failure to occupy the space
within such 12-month period results from SWBT's failure to
perform make-ready work on schedule, the parties shall
negotiate a single extension of the assignment period, which
extension shall not extend the assignment period beyond three
months from the date of completion of SWBT's make-ready work;
and, provided further, that if Applicant can demonstrate that
its failure to occupy the space within such 12-month period
results from the actions of SWBT or third parties other than
persons acting on Applicant's behalf, or from acts of God,
the assignment may be extended for a period no longer than
three months from the date Applicant is first able to
commence construction activities at the site involved.
Assignments to third parties shall be subject to the same
rules applicable to Applicant under this subsection.
Extensions permitted under this subsection must be requested
in writing before expiration of the original 12-month period
and shall be recorded on the appropriate SWBT records
available for inspection under Section 7.03.
(f) SWBT may assign space to itself by making appropriate entries
in the same records used to log assignments to Applicant and
third parties. If SWBT assigns pole, duct, or conduit space
to itself, such assignment will automatically lapse 12 months
after the date the assignment has been entered into the
appropriate SWBT record if SWBT has not occupied such
assigned space within such 12-month period; provided,
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however, that if SWBT's failure to occupy the space within
such 12-month period results from the actions of Applicant or
third parties other than persons acting on SWBT's behalf, or
from acts of God, SWBT's assignment may be extended for a
period no longer than three months from the date SWBT is able
to commence construction at the site involved. Extensions
permitted under this subsection must be recorded before
expiration of the original 12-month period on the appropriate
SWBT records available for inspection under Section 7.03.
(g) If facilities modifications, capacity expansions, or other
make-ready work are required due to the assignment of space
to either party under this section, the party to whom such
space has been assigned will reimburse the person or entity
incurring the costs for such facilities modifications,
capacity expansions, or make-ready work if the party to whom
such space has been assigned fails to occupy the assigned
space within the 12-month assignment period or any extension
thereof.
(h) Except as provided in subsections (e)-(f) above, assignments
shall not be extended, renewed, or sequentially repeated in
any manner (other than by actual occupancy) that enables
Applicant, SWBT, or any joint user to preclude access by
others to unused pole attachment or conduit occupancy space
for any period greater than 12 months after the date of
initial assignment.
(i) At Applicant's election, Applicant may file an application
for access which specifically requests that the space sought
by Applicant not be assigned to Applicant immediately and not
be recorded immediately in the SWBT records available for
inspection by other telecommunications carriers, cable
television systems, or other providers of telecommunications
services under Section 7.03 of this Agreement. In that event,
the space sought by Applicant will not be assigned to
Applicant and will remain available for assignment to others
without restriction until such time as such space is formally
assigned to Applicant in accordance with Applicant's written
instructions and the assignment is recorded in the records
available for inspection under Section 7.03. The assignment
shall be made no later than the date of issuance to Applicant
of a license confirming that Applicant has the right to
occupy the space described in the license. In the event that
Applicant elects to proceed under this subsection,
Applicant's obligation to pay pole attachment and conduit
occupancy fees shall not commence until the date the
assignment is recorded in the appropriate SWBT records and
Applicant shall bear the risks that (1) the space sought by
Applicant will be assigned to and occupied by another person
or entity or (2) circumstances will occur which may require
that SWBT reevaluate
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Applicant's application and repeat the field inspection
portion of the pre-license survey at Applicant's expense.
(j) Notices and applications including assignment requests will
be date- and time-stamped on receipt. Because space will be
selected and further assignments made based on entries logged
and recorded in the appropriate SWBT records, the date and
time of assignment will be the date and time when the
assignment is recorded rather than the date and time of
receipt of the application or notice requesting such
assignment. Although SWBT's clerical personnel will promptly
process assignment requests included in applications and
notices transmitted to SWBT by mail, courier, fax, or other
transmission media, SWBT shall not be liable for any failure
by Applicant to obtain the space desired by Applicant due to
delay in logging assignment requests. Applicant acknowledges
that, to maximize the probability that Applicant will be
assigned the space Applicant desires, Applicant should, when
possible, submit applications and notices including
assignment requests in person to SWBT at the site where the
applicable records are maintained and should countersign the
entry reflecting the assignment and time of assignment.
8.03 Immediate Occupancy. SWBT shall, within 60 days after the effective
date of this Agreement, adopt interim procedures which will provide Applicant
the ability to attach or place facilities on or in SWBT's poles, ducts,
conduits, and rights-of-way on an immediate basis when such space is available
for Applicant's use and no make-ready work or infrequent construction techniques
or connectivity solutions are required. SWBT may, on 60 days advance notice to
Applicant, revise or terminate such interim procedures if they prove to be
unworkable, in which event Applicant may seek renegotiation of this Agreement or
challenge SWBT's decision in accordance with procedures available to Applicant
under applicable federal and state laws, regulations, and commission orders. The
special procedures established under this section shall supplement, rather than
replace, the regular assignment and licensing procedures set forth in Articles
8-10 of this Agreement, are intended to be used only under special circumstances
(e.g., when the regular procedures allow insufficient time to meet customer
service commitments or resolve non-routine construction or network
contingencies), shall not be used on a routine basis, and shall be consistent
with subsections (a)-(f) below.
(a) Upon giving SWBT the notice required by this subsection,
Applicant may immediately occupy space assigned or
provisionally assigned to Applicant pursuant to Section 8.02
of this Agreement. The notice shall be contained in either a
notice of intent to occupy as provided in Section 8.02(b) or
a license application under Section 9.02. Applicant shall not
give such notice or occupy such space without first reviewing
SWBT's records and determining that the records reflect that
the space sought is available.
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(b) Applicant shall not occupy space which has not been assigned
or provisionally assigned to Applicant. The assignment must
be recorded on the appropriate SWBT records, as provided in
Section 8.02, prior to Applicant's occupancy. If Applicant
subsequently determines that the records are inaccurate and
that the space assigned to Applicant is not available, or
that the space assigned is not suitable for Applicant's
intended use, Applicant shall, within one business day,
notify SWBT in writing that it no longer intends to occupy
the space earlier assigned and is releasing the assignment.
Except as otherwise provided in this subsection, Applicant
shall not occupy other space on the pole or in the duct or
conduit without first obtaining an assignment or provisional
assignment of the space which Applicant will occupy. To avoid
high or unusual expenditures resulting from unanticipated
conditions at the site, Applicant may occupy space not
assigned to Applicant subject to the following terms and
conditions.
(1) Applicant may occupy the next available space shown on
SWBT's records as available at the time of Applicant's
last review of the records. Applicant shall not
knowingly occupy space occupied by or assigned to SWBT
or any third party without consent of the party to whom
the space has been assigned.
(2) Within one business day after occupying such space,
Applicant shall submit to SWBT a written notice of
intent to occupy or an application for the space
occupied showing the reason for Applicant's use of the
space occupied.
(3) Applicant shall bear the risk that space occupied by
Applicant pursuant to this section was assigned to SWBT
or a third party during the period between Applicant's
last review of the records and Applicant's occupancy of
such space. After occupying space not previously
assigned to Applicant, Applicant shall review the
records and promptly notify the affected party if
Applicant determines that it has occupied space
assigned to such party. At the request of the party to
whom such space has been assigned, Applicant shall,
within 24 hours, or within such other period of time
mutually agreed to by the parties affected, remove its
facilities from the space in question if the parties
affected cannot reach an acceptable alternative
solution. SWBT and Applicant anticipate that all
parties affected will act in good faith to work out
acceptable solutions and that the parties affected will
not insist on strict adherence to the 24-hour removal
requirement unless there is a legitimate business need
for compelling removal within such time period.
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(4) SWBT shall be entitled to recover from Applicant actual
costs, if any, directly incurred by SWBT as a result of
Applicant's decision under this subsection to occupy
space subject to a valid prior assignment to SWBT.
Applicant shall indemnify, on request defend, and save
SWBT harmless from any injury, loss, damage, liability,
or claim asserted against SWBT by any third party
resulting from Applicant's decision under this
subsection to occupy space assigned to such third
party.
(c) Nothing in this section authorizes Applicant to place its
facilities on or in any pole, duct, or conduit space already
occupied by the facilities of SWBT or a third party, even if
the presence of such facilities is not reflected on SWBT's
records.
(d) Nothing in this section authorizes Applicant, without first
obtaining SWBT's written authorization, to (1) place its
facilities on any pole or in any duct or conduit that
requires make-ready work (other than third-party make-ready
work arranged directly by Applicant) or (2) utilize any
infrequent construction technique or connectivity solution
described in Section 6.03.
(e) If Applicant has not done so already, within 24 hours after
occupying space pursuant to this section, Applicant will
submit to SWBT an application for the space occupied as
provided in Section 9.02 of this Agreement. The application
may be submitted by fax.
(f) Applicant will bear all risks resulting from the possibility
that assigned space which appears from the records to be
available is not available or in suitable condition to be
used by Applicant and shall indemnify, on request defend, and
hold SWBT harmless from any injury, loss, damage, claim, or
liability (including but not limited to third-party claims)
resulting from Applicant's occupancy of space in violation of
this section.
ARTICLE 9: APPLICATIONS AND PRE-LICENSE SURVEYS
9.01 Licenses Required. Except as otherwise specifically permitted in this
Agreement, Applicant shall apply in writing for and receive a license before
attaching facilities to specified SWBT poles or placing facilities within
specified SWBT ducts, conduits, manholes, or handholes. License applications and
information received by SWBT in connection with such applications shall be
subject to the provisions of Article 28 of this Agreement (Confidentiality of
Information).
9.02 Application Form. To apply for a pole attachment or conduit occupancy
license under this Agreement, Applicant shall submit to SWBT two signed copies
of the
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appropriate application forms. SWBT represents that the forms specified in
subsections (a)-(b) are forms in use prior to the effective date of this
Agreement and that SWBT is in the process of revising such forms to conform to
the provisions of this Agreement and to streamline the application process. The
parties therefore agree that the forms specified in subsections (a) and (b) will
be interim forms only. SWBT reserves the right to change the format and content
of these forms upon 60 days written notice to Applicant.
(a) To apply for a pole attachment license, Applicant shall
submit to SWBT two signed copies of SWBT's Form SW-9434
("Access Application and Make-Ready Authorization")
together with completed Form XX-0000 ("Xxxx
Attachments"). An application for a pole attachment
license will not be complete or subject to processing
by SWBT until these forms have been submitted to SWBT;
provided, however, that such forms will be deemed to be
substantially complete if they contain the information
specified in subsections (c)-(h) below, as applicable.
Copies of Forms SW-9433 and SW-9434 are attached to
this Agreement as parts of APPENDIX III.
(b) To apply for a conduit occupancy license, Applicant
shall submit to SWBT two signed copies of SWBT's Form
SW-9434 ("Access Application and Make-Ready
Authorization") together with completed Form SW-9435
("Conduit Occupancy"). An application for a conduit
occupancy license will not be complete or subject to
processing by SWBT until these forms have been
submitted to SWBT; provided, however, that such forms
will be deemed to be substantially complete if they
contain the information specified in subsections
(c)-(h) below, as applicable. Copies of Forms SW-9434
and SW-9435 are attached to this Agreement as parts of
APPENDIX III.
(c) Each application for a license under this Agreement
shall include, at a minimum, the following information:
(1) the poles, ducts, and conduits (including all
manholes) along Applicant's proposed route to or
within which Applicant desires to attach or place
its facilities;
(2) a description of the facilities to be attached to
SWBT's poles and a description of the facilities
to be placed within each component of SWBT's
conduit system (including but not limited to
ducts, conduits, manholes, and handholes) along
the proposed route;
(3) for poles, the proposed points of attachment;
(4) for building entrance or building distribution
ducts or conduits or other space within a
building, a conspicuous statement, as required
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by Section 5.06 of this Agreement, that the
application pertains to a building entrance or
building distribution duct or conduit or other
space within a building;
(5) if applicable, a conspicuous notation that the
space requested is not to be assigned (or billed)
to Applicant until SWBT has received Applicant's
written instruction to make such assignment or
issued a license authorizing Applicant to occupy
the space requested; and
(6) if applicable, a conspicuous statement that
Applicant intends to occupy the space before the
issuance of a license, as provided in Section 8.03
of this Agreement.
(d) Facilities descriptions which apply to multiple pole
attachments or conduit occupancies need only be
described once on any form. Facilities descriptions
shall include, at a minimum, the following information:
(1) the number and types of cables, including the
physical size (diameter) and weight (weight per
foot);
(2) the number and types of strands, if any, which
will be used to support the cables, including the
rated holding capacity expressed in thousand pound
increments (e.g., 2.2M) of such strands; and
(3) sufficient information to identify and describe
the physical characteristics (size, dimensions,
and weight) of apparatus enclosures and other
facilities to be attached to SWBT's poles or
placed in SWBT's conduit system.
(e) When it appears to Applicant that facilities
modification, capacity expansion, or make-ready work
may be required to accommodate Applicant's access
requests, Applicant shall describe the facilities
modification, capacity expansion, or make-ready work
which Applicant proposes. Applicant shall also describe
its plans, if any, to use any infrequent construction
technique or connectivity solution authorized under
Section 6.03 to avoid high or unusual expenditures and
state its reasons for the use of such technique or
solution.
(f) Applicant acknowledges that the poles along a
particular pole line or route may include poles owned
by firms (such as electric utilities) other than SWBT,
that it may be necessary for SWBT to rearrange its
facilities or perform other make-ready work on poles
other than poles it owns or controls in order to
accommodate Applicant's request for access to SWBT's
poles and that, at the time an application is
submitted, it may be difficult for Applicant to
determine with certainty whether a particular
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pole is owned or controlled by SWBT or by another
entity. Accordingly, the application shall, to the
extent feasible, identify all poles utilized by SWBT
(without regard to ownership) along Applicant's
proposed route.
(g) Each application for a license under this Agreement
shall be accompanied by a construction schedule showing
Applicant's projected dates for beginning and
completing construction at the sites specified in the
application. Information on this schedule may be used
by SWBT's engineering and outside plant construction
personnel in scheduling work required to process
Applicant's applications and scheduling such capacity
expansions, make-ready work, and facilities
modifications, if any, as may be necessary to
accommodate Applicant's facilities.
(h) Applicant may include multiple cables in a single
license application and may provide multiple services
(e.g., CATV and non-CATV services) under the same cable
sheath or jacket. When both CATV and non-CATV services
are provided under the same cable sheath or jacket, or
CATV and non-CATV services are provided using different
cables attached or lashed to the same strand or
otherwise occupying the same space on a pole or the
same duct or inner duct within a conduit, Applicant
will so advise SWBT and SWBT shall, if permitted by
law, adjust its charges to enable SWBT to charge
Applicant the rate applicable to telecommunications
carriers rather than the rate applicable to cable
television systems solely to provide cable service.
9.03 Cooperation in the Application Process. The orderly processing of
applications submitted by Applicant and other firms seeking access to SWBT's
poles, ducts, conduits, and rights-of-way requires good faith cooperation and
coordination between SWBT's personnel and personnel acting on behalf of
Applicant and other firms seeking access. The parties therefore agree to the
following transitional procedures which will remain in effect during the term of
this Agreement unless earlier modified by mutual agreement of the parties.
(a) Before submitting a formal written application for
access to SWBT's poles, ducts, conduits, and
rights-of-way, the firm submitting the application
shall make a good faith determination that it actually
plans to attach facilities to or place facilities
within the poles, ducts, conduits, or rights-of-way
specified in the application. Applications shall not be
submitted for the purpose of holding or reserving space
which the applicant does not plan to use or for the
purpose of precluding SWBT or any other provider of
telecommunications or cable television services from
using such poles, ducts, conduits, or rights-of-way.
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(b) Applicant shall only submit applications for access to
poles, ducts, conduits, and rights-of-way which it
plans to use within one year following the date access
is granted and shall use its best efforts to submit
applications in an orderly manner in accordance with
Applicant's needs. If Applicant contemplates the need
to submit more than 10 applications within any 45-day
period with respect to poles, ducts, conduits, and
rights-of-way within the territory of any single SWBT
construction district, Applicant shall give SWBT
advance notice as promptly as is reasonably
practicable.
(c) No more than 300 poles shall be the subject of any
single pole attachment license application.
(d) No more than 20 manholes shall be the subject of any
single conduit occupancy license application.
9.04 Applicant's Priorities. When Applicant has multiple applications on
file within a single SWBT construction district, Applicant shall, at SWBT's
request, designate its desired priority of completion of pre-license surveys,
facilities modifications, capacity expansions, and make-ready work with respect
to all such applications.
9.05 Pre-license Survey. A pre-license survey (including a review of
records and field inspection, if necessary) will be completed by SWBT after
Applicant has submitted its written license application as specified in Section
9.02 of this Agreement. SWBT shall not, without due cause and justification,
repeat pre-occupancy survey work performed by Applicant.
(a) The field inspection portion of the pre-license survey,
which includes the visual inspection of existing pole
and conduit facilities, shall be performed by SWBT or
its authorized representative. Primary purposes of the
field inspection will be to enable SWBT to (1) confirm
or determine the facilities modification, capacity
expansion, and make-ready work, if any, necessary to
accommodate Applicant's facilities; (2) plan and
engineer the facilities modification, capacity
expansion, and make-ready work, if any, required to
prepare SWBT's poles, ducts, conduits, rights-of-way,
and associated facilities for Applicant's proposed
attachments or occupancy; and (3) estimate the costs
associated with such facilities modification, capacity
expansion, or make-ready work. SWBT may dispense with
the field inspection if it appears that the information
necessary to process Applicant's license application is
already available from existing sources, including the
application forms and such other information as may be
available to SWBT. If Applicant has occupied the space
requested before the issuance of a license, a
post-installation inspection of Applicant's
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facilities may be performed, in place of the field
inspection portion of the pre-license survey, to
determine whether such facilities are in compliance
with the specifications of Article 6 and other
provisions of this Agreement. In performing such
inspection, SWBT will not, without due cause and
justification, repeat pre-occupancy survey work
performed by Applicant.
(b) The administrative processing portion of the
pre-license survey (which includes processing the
application and reviewing records) will be performed by
SWBT.
(c) Before performing any portion of the pre-license
survey, SWBT shall obtain Applicant's written
authorization to perform such work. Authorization may
be given, when possible, when the application is
submitted. No authorization shall be required for
post-installation inspections of Applicant's facilities
when installation has occurred before the issuance of a
license.
ARTICLE 10: ISSUANCE AND DENIAL OF LICENSES
(INCLUDING FACILITIES MODIFICATIONS,
CAPACITY EXPANSIONS, AND MAKE-READY WORK
10.01 Response Within 45 Days. Within 45 days of Applicant's submission of
a license application pursuant to Section 9.02 of this Agreement, or within such
other period of time as may be mutually agreed upon in writing by the parties,
SWBT shall respond to the application. The response shall state whether the
application is being granted or denied. If denial is anticipated, or if SWBT
personnel involved in the processing of Applicant's request for access become
aware of hazardous substances at the site requested by Applicant, SWBT shall
promptly advise Applicant and shall, at Applicant's request, discuss
alternatives to denial and issues associated with the presence of such hazardous
substances. Additional state-specific response and notice requirements, if any,
shall be addressed by an addendum to this Agreement.
(a) If access is granted, SWBT shall, no later than 45 days
after Applicant's submission of the license
application, further advise Applicant in writing (1)
what facilities modifications, capacity expansions, or
make-ready work, if any, will be required to prepare
SWBT's pole or conduit facilities, (2) provide
Applicant an estimate of charges for such facilities
modifications, capacity expansions, or make-ready work
and (3) disclose to Applicant any hazardous substances
known by SWBT to be present at the site.
(b) SWBT may take into account issues of capacity, safety,
reliability, and engineering when considering requests
for access, provided the assessment of such factors is
done in a nondiscriminatory manner. If
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access is denied, SWBT shall confirm the denial in
writing by the 45th day after the receipt by SWBT of
Applicant's completed application. A denial of access
shall be specific, shall include all relevant evidence
and information supporting the denial, and shall
explain how such evidence and information relates to a
denial of access for reasons of lack of capacity,
safety, reliability, or generally applicable
engineering purposes. If Applicant in its completed
application sets forth in writing specific proposals
for expanding capacity, the denial statement shall
specifically address such proposals.
(c) Applicant agrees that if, at any time prior to the 45th
day, it has determined that it no longer seeks access
to specific poles, ducts, or conduit facilities,
Applicant shall promptly withdraw or amend its
application, thereby minimizing the administrative
burdens on SWBT of processing and responding to the
application.
(d) Notwithstanding the 45-day deadline, SWBT will,
pursuant to Section 8.03 of this Agreement, make
available to Applicant for immediate occupancy any
pole, duct, or conduit space which is not currently
assigned, not designated as a maintenance duct, and not
subject to applicable make-ready requirements.
(e) If SWBT fails to respond in writing within 30 days of
SWBT's documented receipt of a license application
pursuant to Section 9.02 of this Agreement, or within
such other period of time as may be mutually agreed
upon in writing by the parties, Applicant may by
written notice inquire whether SWBT intends to deny
Applicant's request for access. After such notice has
been given and receipt by SWBT of a properly submitted
license application has been confirmed, SWBT's failure
to respond in writing within 15 days after receipt of
the notice shall be deemed to constitute approval of
the request for access. In such event, Applicant shall
be entitled to occupy the space requested without the
formality of a license; provided, however, that nothing
contained in this subsection shall authorize Applicant
to occupy space already occupied or subject to a prior
valid space assignment to SWBT or any third-party; and
provided further that nothing in this subsection
authorizes Applicant, without first obtaining SWBT's
written authorization, to (1) place its facilities on
any pole or in any duct or conduit that requires
make-ready work (other than third-party make-ready work
arranged directly by Applicant) or (2) utilize any
infrequent construction technique or connectivity
solution described in Section 6.03.
10.02 Obligation to Construct or Modify Facilities; Capacity Expansions.
SWBT may grant access subject to Applicant's approval of such make-ready work
(including facilities modifications) as may be required to expand capacity to
accommodate
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Applicant's request, in which event Applicant shall either accept such
conditions, initiate good faith negotiations to explore other potential
accommodations, or withdraw its request for access. If SWBT does not offer to
expand capacity and denies Applicant's request for access, SWBT shall promptly
notify Applicant of such determination. SWBT shall not deny Applicant's request
for access on lack of capacity grounds when capacity can be expanded as provided
in this section and in Section 6.03 (infrequent construction techniques and
connectivity solutions).
(a) At Applicant's request, SWBT will replace, expand, or
modify its poles and conduit system, or otherwise
expand the capacity of such facilities to accommodate
the placement of Applicant's facilities; provided,
however, that such modifications shall be consistent
with the capacity, safety, reliability, and engineering
considerations which SWBT would apply to itself if the
work were performed for SWBT's own benefit. Outside
plant facilities modifications and capacity expansions
contemplated by this subsection include, but are not
limited to, installation of inner duct, cable
consolidations and the removal of cables that are
retired or inactive (dead). Except as otherwise
specifically provided in this section, SWBT may recover
from Applicant the costs of facilities modifications
and capacity expansions to make space available for
Applicant's facilities and charges for such
modifications and expansions shall be determined and
billed as provided in APPENDIX I of this Agreement.
(b) SWBT will, at its own expense, install inner duct in
SWBT's conduit system as necessary to make space
available for Applicant's facilities. Inner duct
installations to accommodate Applicant's facilities
will be performed by SWBT within the same time
intervals which would apply if SWBT were performing
such installations for itself. If SWBT's intervals for
beginning or completing inner duct installation do not
meet Applicant's needs, Applicant may arrange for the
inner duct installation to be performed by an
authorized contractor selected by Applicant from a
list, jointly developed and maintained by the parties,
of contractors mutually approved as qualified to
perform inner duct installations. Applicant may install
the inner duct itself if Applicant is on the list of
mutually approved contractors at the time the work is
performed. When inner duct is installed in SWBT's
conduit system by Applicant or an authorized contractor
selected by Applicant, SWBT will provide the
inner-ducting materials to be installed and Applicant
shall bear all other installation expenses. Applicant
shall give SWBT sufficient advance notice of the
materials needed to enable SWBT to provide such
materials to Applicant on a timely basis. Applicant
shall return all unused materials, including unused
inner duct and reels, to SWBT or purchase them from
SWBT. Inner duct installed by Applicant or an
authorized contractor selected by Applicant shall be
installed in accordance with
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SWBT's specifications and in accordance with the same
standards and practices which would be followed if the
inner duct were being installed by SWBT or SWBT's
contractors. Applicant shall indemnify, on request
defend, and hold SWBT harmless for any injuries,
losses, damages, claims, or liabilities directly
resulting from the installation of inner duct by
Applicant or any authorized contractor selected by
Applicant under this subsection. Applicant shall not,
without SWBT's prior written approval, arrange for
inner duct installation to be performed by
subcontractors who are not authorized contractors.
(c) SWBT shall, at its expense, remove cables that are
retired or inactive (dead) to free-up requested duct
and pole space, provided that such removal is
reasonably feasible (i.e., cable pulls easily without
incident). If a section of cable is "frozen" in a duct
and would require excavation to remove, Applicant may,
at its option, request that SWBT excavate the
obstruction or, in the alternative, arrange for
excavation of the obstruction to be performed by an
authorized contractor selected by Applicant from a
list, jointly developed and maintained by the parties,
of contractors mutually approved as qualified to
perform such excavations. Applicant may excavate the
obstruction itself if Applicant is on the list of
mutually approved contractors at the time the work is
performed. Such excavations will be at Applicant's
expense. Removal of the remainder of the cable will be
at SWBT's expense. Excavation work performed by
Applicant or an authorized contractor selected by
Applicant shall be performed in accordance with SWBT's
specifications and in accordance with the same
standards and practices which would be followed if such
excavation work were being performed by SWBT or SWBT's
contractors. Neither Applicant nor any authorized
contractor selected by Applicant to perform excavation
work under this subsection shall conduct facility
excavation activities in any manner which jeopardizes
or degrades the integrity of SWBT's structures or
interferes with any existing use of the facilities.
Applicant shall indemnify, on request defend, and hold
SWBT harmless for any injuries, losses, darnages,
claims, or liabilities directly resulting from the
performance of excavation work by Applicant or any
authorized contractor selected by Applicant under this
subsection. Applicant shall not, without SWBT's prior
written approval, arrange for excavation work to be
performed under this subsection by subcontractors who
are not qualified contractors.
10.03 Issuance of Licenses and Immediate Access When No Make-ready Work is
Required. If, on the basis of Applicant's representations or SWBT's field
inspection, if any, SWBT determines that no make-ready work is necessary to
accommodate Applicant's facilities, SWBT will issue a license without performing
make-ready work and pole attachment or conduit occupancy space will be made
available to Applicant for
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immediate occupancy. Immediate occupancy prior to the issuance of a license
shall be governed by Section 8.03.
10.04 Make-ready Work. If SWBT determines that make-ready work will be
necessary to accommodate Applicant's facilities, SWBT shall promptly notify
Applicant of the make-ready work proposed to enable the accommodation of
Applicant's facilities.
(a) The notice shall be given in writing no later than 45
days after the receipt by SWBT of Applicant's completed
application pursuant to Section 9.02 of this Agreement
or within such other period of time as may be mutually
agreed upon in writing by the parties.
(b) The notice will include SWBT's estimate of make-ready
charges, which estimate shall be stated on SWBT Form
SW-9434 ("Access Application and Make-Ready
Authorization"), a copy of which is attached hereto as
part of APPENDIX III.
(c) Applicant shall have 20 days (the "acceptance period")
after receiving SWBT's estimate of make-ready charges
to authorize completion of the make-ready work proposed
by SWBT or to advise SWBT of its willingness to perform
the proposed make-ready work itself. If Applicant
advises SWBT that it is willing to perform the
make-ready work proposed by SWBT in accordance with
SWBT's plans and specifications, SWBT will not, without
due cause and justification, refuse to accept
Applicant's offer to perform the work. Authorization
shall be accomplished by Applicant's signing the
estimate and returning it to SWBT within the 20-day
acceptance period.
(d) Within the 20-day acceptance period, the parties may
negotiate modifications of the make-ready work to be
performed. If the parties reach agreement through
negotiation, a new estimate shall be prepared and
authorization shall be accomplished by Applicant's
signing the revised estimate and returning it to SWBT
within the original 20-day acceptance period, or within
such period of time as may be mutually agreed upon by
the parties.
(e) If Applicant does not sign and return the estimate
within the 20-day acceptance period, or within such
other period of time as may be mutually agreed upon in
writing by the parties, Applicant shall notify SWBT in
writing by the 20th day whether Applicant is
withdrawing its application, electing to perform the
make-ready work itself as provided in subsection (c) or
electing to treat SWBT's make-ready requirements as a
denial of access.
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(1) If no such notice is given by the 20th day, or such
later date as may be mutually agreed upon by the
parties, SWBT shall contact Applicant to determine
whether Applicant intends to withdraw its application.
Applicant shall be deemed to have withdrawn its
application if, in response to SWBT's inquiry,
Applicant does not immediately sign and return the
estimate to SWBT.
(2) If Applicant timely notifies SWBT that it is electing
to treat SWBT's make-ready requirements as a denial of
access, SWBT shall, within 20 days after receiving the
notice, provide Applicant with a written statement
explaining its decision to grant access only if the
specified make-ready work is performed. The statement
shall be specific, shall include all relevant evidence
and information supporting SWBT's decision to grant
access only if the specified make-ready work is
performed, and shall explain how such evidence and
information relates to SWBT's decision for reasons of
lack of capacity, safety, reliability, or generally
applicable engineering purposes. The statement shall
also set forth the basis for SWBT's make-ready
proposals and specifically address SWBT's rationale for
rejecting Applicant's alternative written proposals, if
any.
10.05 Performance of Make-ready Work. Except as otherwise specifically
provided in Section 10.02 and in this section, make-ready work shall be
performed by SWBT or by contractors, subcontractors, or other persons acting on
SWBT's behalf and shall be performed by SWBT in accordance with the same time
intervals which would be applicable if SWBT were performing the work for itself.
(a) Applicant and SWBT will mutually establish and maintain for
each SWBT construction district lists of authorized
contractors which may be selected by Applicant to perform
make-ready work when SWBT's interval for beginning or
completing such make-ready work does not meet Applicant's
needs. At Applicant's request, Applicant will be included on
such lists upon Applicant's demonstrating that (1) its
personnel are qualified to perform such work in accordance
with SWBT's specifications and (2) Applicant meets the
financial responsibility (insurance and bonding)
requirements generally applicable to contractors,
subcontractors, and other vendors performing the same or
similar work on SWBT's behalf or the self-insurance
requirements of Section 23.02.
(b) If SWBT's interval for beginning or completing make-ready
work does not meet Applicant's needs, Applicant may (1)
perform the make-ready work itself, if Applicant is on the
applicable list of authorized contractors at the time the
work is to be performed or (2) arrange for the work to be
performed by an authorized contractor selected by Applicant
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from the applicable list of authorized contractors. Subject
to the availability of personnel, Applicant may also request
that SWBT perform the work on an expedited basis; provided,
however, that make-ready work will not be performed on an
expedited basis unless Applicant first approves any overtime
or premium rates or charges associated with performance of
the work on an expedited basis.
(c) From time to time, additional contractors, subcontractors or
other vendors may be jointly approved by Applicant and SWBT
to perform specific make-ready work in the event that the
work load exceeds the capacity of the authorized contractors
on the approved list to perform the make-ready work in a
timely manner.
(d) Make-ready work performed by Applicant, by an authorized
contractor selected by Applicant, or by a contractor,
subcontractor, or other vendor jointly approved by the
parties under subsection (c) shall be performed in
accordance with SWBT's specifications and in accordance with
the same standards and practices which would be followed if
such excavation work were being performed by SWBT or SWBT's
contractors. Neither Applicant nor authorized contractors
selected by Applicant to perform make-ready work under this
section shall conduct such work in any manner which
jeopardizes or degrades the integrity of SWBT's structures
or interferes with any existing use of SWBT's facilities.
Applicant and any authorized contractor selected by
Applicant to perform make-ready work shall indemnify, on
request defend, and hold SWBT harmless from any and all
injuries, losses, damages, claims, or liabilities directly
resulting from their activities under this section.
(e) Nothing contained in this section authorizes Applicant, any
authorized contractor selected by Applicant, or any other
person acting on Applicant's behalf to consolidate SWBT's
cables.
10.06 Multiple Applications. Applications shall be processed on a
first-come, first-served basis. Applications filed on the same date shall be
treated as having been filed simultaneously and shall be processed accordingly.
10.07 Payments to Others for Expenses Incurred in Transferring or Arranging
Their Facilities. Applicant shall make arrangements with the owners of other
facilities attached to SWBT's poles or occupying space in SWBT's conduit system
regarding reimbursement for any expenses incurred by them in transferring or
rearranging their facilities to accommodate the attachment or placement of
Applicant's facilities to or in SWBT's poles, ducts, and conduits.
10.08 Reimbursement for the Creation or Use of Additional Capacity. As a
result of facilities modification, capacity expansion, or other make-ready work
performed to
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accommodate Applicant's facilities, additional capacity may become available on
SWBT's poles or in its conduit system. In such event, Applicant shall not have a
preferential right to utilize such additional capacity in the future and shall
not be entitled to any pole attachment or conduit occupancy fees subsequently
paid to SWBT for the use of such additional capacity. SWBT shall, however,
establish procedures for giving Applicant notice of the subsequent use by SWBT
or third parties of additional space or capacity created at Applicant's expense.
If SWBT utilizes additional space or capacity created at Applicant's expense,
SWBT will reimburse Applicant on a pro-rata basis for SWBT's share, if any, of
Applicant's capacity expansion costs, to the extent reimbursement is required by
the Pole Attachment Act and applicable rules, regulations, and commission
orders. If any third party later utilizes any such additional space or capacity,
SWBT shall, at the request of Applicant or such third party, provide such
information as may be available to SWBT to assist Applicant and such third party
in determining the amount, if any, which such third party may owe Applicant as
its pro-rata share of Applicant's capacity expansion costs. Nothing contained in
this section shall be construed as conferring or imposing on SWBT any right or
duty to determine the amounts owing by a third party to Applicant, to collect or
remit any such amounts to Applicant, to resolve or adjudicate disputes over
reimbursement between Applicant and third parties, to deny a third party access
to SWBT's poles, ducts, conduits, or rights-of-way due to such third party's
failure to satisfy Applicant's reimbursement demands, or to take any other
action to enforce Applicant's reimbursement rights against any third party. In
like manner, for additional capacity created by SWBT from and after the date of
enactment of the Telecommunications Act of 1996, SWBT shall be entitled to
recover from Applicant and third parties, to the full extent permitted by law,
their pro-rata shares of such capacity expansion costs incurred by SWBT. To the
extent that either party seeks to avail itself of this cost-saving mechanism,
such party shall be responsible for maintaining adequate records documenting the
costs subject to reimbursement, including but not limited to costs incurred for
facilities modification and capacity expansion work performed directly by such
party or contractors performing work on such party's behalf.
10.09 License and Attachment. After all required make-ready work is
completed, SWBT will issue a license confirming that Applicant may attach
specified facilities to SWBT's poles or place specified facilities in SWBT's
conduit system. Applicant shall have access to attach or place only those
facilities specifically described in licenses subject to this Agreement, and no
others, except as otherwise specifically provided in (a) Sections 8.03 and 12.03
or other provisions of this Agreement, (b) any other written agreement between
the parties providing for such access, or (c) the provisions of any applicable
tariffs or commission orders.
ARTICLE 11: CONSTRUCTION OF APPLICANT'S FACILITIES
11.01 Responsibility for Attaching and Placing Facilities. Each party shall
be responsible for the actual attachment of its own facilities to SWBT's poles
and the placement of such facilities in SWBT's ducts, conduits, and
rights-of-way and shall be solely responsible for all costs and expenses
incurred by it or on its behalf in connection
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with such activities. In this regard, each party and its contractors shall be
solely responsible for (a) paying all persons and entities who provide
materials, labor, access to real or personal property, or other goods or
services in connection with the construction and attachment of its facilities
and (b) directing the activities of all personnel acting on such party's behalf
while they are physically present on, within, or in the vicinity of SWBT's
poles, ducts, conduits, and rights-of-way.
11.02 Construction Schedule. After the issuance of a license, Applicant
shall provide SWBT with an updated construction schedule and thereafter keep
SWBT informed of anticipated changes in the construction schedule. Construction
schedules received by SWBT shall be subject to the provisions of Article 28 of
this Agreement (Confidentiality of Information). Construction schedules required
by this section shall include, at a minimum, the following information:
(a) the name, title, business address, and business telephone
number of the manager responsible for construction of the
facilities;
(b) the names of each contractor and subcontractor which will be
involved in the construction activities;
(c) the estimated dates when construction will begin and end;
and
(d) the approximate dates when Applicant or personnel working on
Applicant's behalf will be performing construction work in
connection with the attachment of Applicant's facilities to
SWBT's poles or the placement of Applicant's facilities in
any part of SWBT's conduit system.
ARTICLE 12: USE AND ROUTINE MAINTENANCE
OF APPLICANT'S FACILITIES
12.01 Use of Applicant's Facilities. Each license subject to this Agreement
authorizes Applicant to have access to Applicant's facilities on or within
SWBT's poles, ducts, and conduits as needed for the purpose of serving
Applicant's customers.
12.02 Routine Maintenance of Applicant's Facilities. Each license subject
to this Agreement authorizes Applicant to engage in routine maintenance of
facilities located on or within SWBT's poles, ducts, and conduits. Routine
maintenance does not include the replacement or modification of Applicant's
facilities in any manner which results in Applicant's facilities differing
substantially in size, weight, or physical characteristics from the facilities
described in Applicant's license.
12.03 Installation of Drive Rings and J-Hooks. Applicant may install drive
rings and J-hooks on SWBT's poles for the attachment of drop wires as specified
in this section.
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(a) Drive rings and J-hooks may be installed as specified in
pole attachment licenses issued to Applicant.
(b) If attachment space has already been licensed to Applicant
on a given SWBT pole, Applicant may install drive rings and
J-hooks within the space assigned to Applicant (typically
six inches above and six inches below Applicant's point of
attachment on the pole if the point of attachment is in the
center of the space assigned to Applicant) without applying
for or obtaining a new or amended license. No additional
attachment charges shall apply with respect to drive rings
and J-hooks installed in Applicant's licensed attachment
space.
(c) Applicant's first choice for placement of drive rings and
J-hooks shall be the licensed attachment space assigned to
Applicant as provided in subsection (b) above; provided,
however, that if attachment space already licensed to
Applicant on a given SWBT pole is not adequate for
Applicant's drive rings or J-hooks, Applicant may, when
necessary, and without applying for or obtaining a new or
amended license, install such drive rings and J-hooks above
or below Applicant's licensed attachment space as described
in subsection (b) above. No additional attachment charges
shall apply with respect to drive rings and J-hooks
installed outside Applicant's licensed attachment space as
permitted in this subsection.
(d) If Applicant has not already been licensed attachment space
on a given SWBT pole, Applicant may, when necessary, install
drive rings and J-hooks to unassigned space on such pole
without first obtaining a license for such attachment and
shall, promptly following such installation, notify SWBT of
the attachment. Such notification shall be made on a form to
be developed by SWBT for this purpose and shall constitute
an application for a license. Such application may be
conditionally granted without a pre-license survey or other
inquiry by SWBT, and SWBT shall not be required to process
the application, log the attachment as an assignment in its
outside plant records, or issue a permanent license for the
attachment unless specifically requested by Applicant to do
so; provided, however, that a conditionally granted
application under this subsection shall be subject to
revocation if it is subsequently determined that such
attachment has been made in violation of subsection (e) of
this section or other provisions of this Agreement.
Drive-rings and J-hooks installed pursuant to this
subsection are pole attachments and charges for such
attachments shall be determined in accordance with the Pole
Attachment Act and applicable rules, regulations, and
commission orders.
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(e) Notwithstanding the provisions of subsections (c)-(d) above,
Applicant may not install drive rings and J-hooks in space
assigned to SWBT or another joint user without the approval
of SWBT or such other joint user and may not install drive
rings and J-hooks in unassigned space in any manner which
will block or preclude the subsequent occupancy or use of
space by SWBT or other joint users. If the presence of
Applicant's facilities in space not assigned to Applicant
will block or preclude the use of assigned or otherwise
assignable space by SWBT or other joint users, Applicant
shall, on SWBT's request, promptly relocate the facilities
in order to accommodate the facilities of other users and
shall bear all expenses associated with such relocation.
(f) SWBT may not install drive rings or J-hooks in space
assigned to Applicant without Applicant's approval and
shall, at Applicant's request, and at SWBT's expense,
promptly relocate or, if necessary, remove, any drive rings
or J-hooks installed in violation of this subsection. If
SWBT drive rings or J-hooks have been installed in space
subsequently assigned to Applicant, or if the presence of
SWBT drive rings or J-hooks blocks or precludes the use of
otherwise assignable space on SWBT's poles, SWBT shall, at
Applicant's request, relocate such facilities, if it is
feasible to do so, as make-ready work.
(g) Applicant shall, at the request of SWBT or another joint
user, at Applicant's expense, promptly relocate or, if
necessary, remove any drive rings and J-hooks placed on
SWBT's poles other than as permitted in this section.
12.04 Short-term Use of Maintenance Ducts for Repair and Maintenance
Activities. Maintenance ducts shall be available, on a nondiscriminatory basis,
for short-term (not to exceed 30 days) non-emergency maintenance or repair
activities by any person or entity (including but not limited to SWBT,
Applicant, other local service providers, and other joint users) with facilities
in the conduit section in which the maintenance duct is located; provided,
however, that use of the maintenance duct for non-emergency maintenance and
repair activities must be scheduled by SWBT. A person or entity using the
maintenance duct for non-emergency maintenance or repair activities shall
immediately notify SWBT of such use and must either vacate the maintenance duct
within 30 days or, with SWBT's consent, which consent shall not be unreasonably
withheld, rearrange its facilities to ensure that at least one full-sized
replacement maintenance duct (or, if the designated maintenance duct was an
inner duct, a suitable replacement inner duct) is available for use by all
occupants in the conduit section within 30 days after such person or entity
occupies the maintenance duct. Cables temporarily placed in the maintenance duct
on a non-emergency basis shall be subject to such accommodations as may be
necessary to rectify emergencies which may occur while the maintenance duct is
occupied.
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12.05 Responsibility for Maintenance of Facilities. Each party shall be
solely responsible for maintaining its own facilities and (a) paying all persons
and entities who provide materials, labor, access to real or personal property,
or other goods or services in connection with the maintenance of such party's
facilities and (b) directing the activities of all such personnel while they are
physically present on, within, or in the vicinity of SWBT's poles, ducts,
conduits, and rights-of-way.
12.06 Information Concerning the Maintenance of Applicant's Facilities.
Promptly after the issuance of a license, Applicant shall provide SWBT with the
name, title, business address, and business telephone number of the manager
responsible for routine maintenance of Applicant's facilities and shall
thereafter notify SWBT of changes to such information. The manager responsible
for routine maintenance of Applicant's facilities shall, on SWBT's request,
identify any contractor, subcontractor, or other person performing maintenance
activities on Applicant's behalf at a specified site.
ARTICLE 13: MODIFICATION OF APPLICANT'S FACILITIES
13.01 Notification of Planned Modifications. Applicant shall notify SWBT in
writing at least 30 days before adding to, relocating, replacing or otherwise
modifying its facilities already attached to a SWBT pole or located in any SWBT
duct or conduit. The notice shall contain sufficient information to enable SWBT
to determine whether the proposed addition, relocation, replacement, or
modification is within the scope of Applicant's present license or requires a
new or amended license. No notice shall be required for such routine
modifications as the installation or placement of drive rings or J-hooks,
terminals, and other ancillary apparatus routinely used in providing service to
customers, having no effect on the structural integrity of SWBT's poles, ducts,
or conduits, and having no effect on the ability of SWBT or joint users to use
or have access to SWBT's poles, ducts, conduits, or rights-of-way.
13.02 New or Amended License Required. A new or amended license will be
required if the proposed addition, relocation, replacement, or modification:
(a) requires that Applicant occupy additional space on SWBT's
poles (except on a temporary basis in the event of an
emergency);
(b) requires that Applicant occupy additional space (other than
space in the maintenance duct in accordance with Sections
12.04, 13.03, and 15.02 of this Agreement) in any SWBT duct
or conduit except on a temporary basis in the event of an
emergency;
(c) results in the facilities attached to SWBT's poles or placed
in SWBT's ducts or conduits being different from those
described in Applicant's current license (e.g., different
duct or size increase causing a need to recalculate storm
loadings, guying, or pole class); or
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(d) requires additional holding capacity on a permanent basis.
13.03 Use of Maintenance Duct in Connection with Facility Modifications and
Replacements. Non-emergency access to the maintenance duct in connection with
facilities modifications and replacements shall be subject to the provisions of
Section 12.04 of this Agreement.
13.04 Replacement of Facilities and Spinning/Overloading Additional Cables.
Applicant may replace existing facilities with new facilities occupying the same
pole, duct, or conduit space, and may spin or overlash additional cables to its
own existing facilities; provided, however, that such activities shall not be
considered to be routine maintenance and shall be subject to the requirements of
this article.
13.05 Streamlined Procedures for the Issuance of Amended Licenses. SWBT may
streamline procedures for the issuance of amended licenses with respect to
proposed additions, relocations, replacements, or modifications of Applicant's
facilities when it appears to SWBT that the proposed additions, relocations,
replacements, or modifications will not require make-ready work by SWBT, will
not interfere with SWBT's use of its poles, conduit systems, or facilities
attached or connected thereto or contained therein, and will not interfere with
the use of existing facilities attached or connected thereto or contained
therein by joint users.
ARTICLE 14: REQUIRED REARRANGEMENTS
OF APPLICANT'S FACILITIES
14.01 Notice of Planned Modifications. The parties acknowledge that the
Pole Attachment Act recites in part that "Whenever the owner of a pole, duct,
conduit, or right-of-way intends to modify or alter such pole, duct, conduit, or
right-of-way, the owner shall provide written notification of such action to any
entity that has obtained an attachment to such conduit or right-of-way so that
such entity may have a reasonable opportunity to add to or modify its existing
attachment." The parties further acknowledge that the FCC, in the First
Interconnection Order in CC Docket No. 96-98, recites that "... absent a private
agreement establishing notification procedures, written notification of a
modification must be provided to parties holding attachments on the facility to
be modified at least 60 days prior to the commencement of the physical
modification itself." This article is intended by the parties to alter the
above-described notification requirements only as provided in Section 14.02(b)
below.
14.02 Required Rearrangement of Applicant's Facilities. Applicant
acknowledges that, from time to time, it may be necessary or desirable for SWBT
to rearrange facilities on or within its poles or conduit systems, change out
poles, add poles to a pole line, relocate or reconstruct poles, pole lines,
conduit segments, or conduit runs, enlarge manholes, reinforce conduit, or
otherwise modify poles, pole lines, or portions of its conduit system and that
such changes may be necessitated by SWBT's own business needs or by factors
outside of SWBT's control, such as the decision by a municipality to
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widen streets or the decision by a third party to seek access to SWBT's poles,
ducts, conduits, or rights-of-way.
(a) Applicant agrees that Applicant will cooperate with SWBT and
joint users in making such rearrangements as may be
necessary to enable such changes to be made and that costs
incurred by Applicant in making such rearrangements shall,
in the absence of a specific agreement to the contrary, be
borne by the parties in accordance with then applicable
statutes, rules, regulations, and commission orders,
including the Pole Attachment Act, rules, regulations, and
commission orders thereunder.
(b) Whenever feasible, SWBT shall give Applicant not less than
60 days prior written notice of the need for Applicant to
rearrange its facilities pursuant to this section. The
notice shall state the date by which such rearrangements are
to be completed. Applicant shall complete such
rearrangements within the time prescribed in the notice.
SWBT may request that such modification be made within a
shorter period of time, in which event Applicant shall not
refuse to comply such request without due cause and
justification. In determining due cause and justification,
the following factors, among others, may be considered:
(1) the circumstances under which the rearrangements are
sought (e.g., street-widening project, request by a
competing provider for access);
(2) the timeliness of SWBT's request to Applicant;
(3) the nature and number of rearrangements sought;
(4) the impact on the ability of the parties and joint
users to meet customer service needs; and
(5) risks of service interruption to customers of the
parties and joint users.
(c) Nothing contained in this article shall preclude Applicant
from advising SWBT, within 60 days from the date of the
notice, of its desire to add to or modify its existing
attachment.
ARTICLE 15: EMERGENCY REPAIRS AND POLE REPLACEMENTS
15.01 Applicability. The parties acknowledge that in the event of an
emergency, services provided by the parties and joint users to their respective
customers may be interrupted, that it may not be possible for all service
providers with facilities attached to SWBT's poles or placed in SWBT's ducts,
conduits, or rights-of-way to restore service to all customers at the same time,
that disputes may arise between the parties concerning the
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manner in which emergency repairs shall be made, that it is essential that
decisions be made quickly, and that it is highly desirable that all service
providers utilizing SWBT's poles, ducts, conduits, and rights-of-way enter into
appropriate arrangements relating to emergency repairs and service restoration.
In the absence of prearranged agreements, it is expected that disputes will be
immediately resolved at the site by the affected parties present based upon the
criteria set forth in Section 15.05 of this Agreement. The provisions of this
article shall apply in the absence of more comprehensive agreements relating to
emergency repairs.
15.02 Responsibility for Emergency Repairs; Access to Maintenance Duct. In
general, each party shall be responsible for making emergency repairs to its own
facilities and for formulating appropriate plans and practices enabling such
party to make such repairs.
(a) Nothing contained in this Agreement shall be construed as
requiring either party to perform any repair or service
restoration work of any kind with respect to the other
party's facilities or the facilities of joint users.
(b) Maintenance ducts shall be available, on a nondiscriminatory
basis, for emergency repair activities by any person or
entity (including but not limited to SWBT, Applicant, other
local service providers, and other joint users) with
facilities in the conduit section in which the maintenance
duct is located; provided, however, that a person or entity
using the maintenance duct for emergency repair activities
shall immediately notify SWBT of such use and must either
vacate the maintenance duct within 30 days or, with SWBT's
consent, which consent shall not be unreasonably withheld,
rearrange its facilities to ensure that at least one
full-sized replacement maintenance duct (or, if the
designated maintenance duct was an inner duct, a suitable
replacement inner duct) is available for use by all
occupants in the conduit section within 30 days after such
person or entity occupies the maintenance duct. The parties
agree not to exceed 30 days' use except in unusual
emergencies that may require longer than 30 days to rectify.
(c) If necessary, other unoccupied ducts or inner ducts may be
used on a short-term basis when the maintenance duct is
unavailable. Any such use shall be subject to the same rules
applicable to the maintenance duct and shall be subject to
the rights of any party or joint user to whom such duct or
inner duct has been assigned.
15.03 Designation of Emergency Repair Coordinators and Other Information.
For each SWBT construction district, Applicant shall provide SWBT with the
emergency contact number of Applicant's designated point of contact for
coordinating the handling of emergency repairs of Applicant's facilities and
shall thereafter notify SWBT of changes to such information.
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15.04 Reporting of Conditions Requiring Emergency Repairs. As a courtesy,
each party shall endeavor to notify the other party at the earliest practicable
opportunity after discovering any condition on or in any of SWBT's poles, ducts,
conduits, or rights-of-way requiring emergency repairs to the other party's
facilities.
15.05 Order of Precedence of Work Operations; Access to Maintenance Duct
and Other Unoccupied Ducts in Emergency Situations. When notice and coordination
are practicable, SWBT, Applicant, and other affected parties shall coordinate
repair and other work operations in emergency situations involving service
disruptions. Disputes will be immediately resolved at the site by the affected
parties present in accordance with the following principles.
(a) Emergency service restoration work requirements shall take
precedence over other work operations.
(b) Except as otherwise agreed upon by the parties, restoration
of lines for emergency services providers (e.g., 911, fire,
police, and hospital lines) shall be given the highest
priority and temporary occupancy of the maintenance duct
(and, if necessary, other unoccupied ducts) shall be
assigned in a manner consistent with this priority.
Secondary priority shall be given to restoring services to
the local service providers with the greatest numbers of
local lines out of service due to the emergency being
rectified. The parties shall exercise good faith in
assigning priorities, shall base their decisions on the best
information then available to them at the site in question,
and may, by mutual agreement at the site, take other factors
into consideration in assigning priorities and sequencing
service restoration activities.
(c) SWBT shall determine the order of precedence of work
operations and assignment of duct space in the maintenance
duct (and other unoccupied ducts) only if the affected
parties present are unable to reach prompt agreement;
provided, however, that these decisions shall be made by
SWBT on a nondiscriminatory basis in accordance with the
principles set forth in this section.
15.06 Unilateral Corrective Action. When either party reasonably believes
that, due to the condition of the other party's facilities placed on, within, or
in the vicinity of SWBT's poles, ducts, conduits, or rights-of-way, there is an
immediate or imminent threat to the safety or health of employees or any other
person, to the physical integrity or functioning of either party, or either
party's ability to meet its service obligations, either party may unilaterally
perform such limited corrective work as may be necessary to prevent or mitigate
against the injury threatened. For example, if facilities of the other party
have become detached or partially detached from a pole, or detached or
partially detached
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from supporting racks or wall supports within a manhole, either party
may reattach them as provided in this section but shall not be obligated to do
so.
(a) Before performing any corrective work involving facilities
of the other party, SWBT or Applicant shall first attempt to
notify the other party. After such notice has been given,
the parties shall coordinate corrective work.
(b) When an emergency situation exists such that advance notice
and coordination are not practicable, either party may
perform corrective work without first giving notice to the
other party and shall promptly notify the other party of the
corrective work performed and the reason why notice was not
given.
15.07 Emergency Pole Replacements. Applicant will cooperate fully with SWBT
when emergency pole replacements are required.
(a) When emergency pole replacements are required, SWBT shall
promptly make a good faith effort to contact Applicant to
notify Applicant of the emergency and to determine whether
Applicant will respond to the emergency in a timely manner.
(b) If notified by SWBT that an emergency exists which will
require the replacement of a pole, Applicant shall transfer
its facilities immediately, provided such transfer is
necessary to rectify the emergency. If the transfer is to a
SWBT replacement pole, the transfer shall be in accordance
with SWBT's placement instructions.
(c) If Applicant is unable to respond to the emergency situation
immediately, Applicant shall so advise SWBT and thereby
authorize SWBT (or any joint user sharing the pole with
SWBT) to perform such emergency-necessitated transfers (and
associated facilities rearrangements) on Applicant's behalf.
15.08 Expenses Associated with Emergency Repairs. Each party shall bear all
reasonable expenses arising out of or in connection with emergency repairs of
its own facilities and transfers or rearrangements of such facilities associated
with emergency pole replacements made in accordance with the provisions of this
article.
(a) Each party shall be solely responsible for paying all
persons and entities who provide materials, labor, access to
real or personal property, or other goods or services in
connection with any such repair, transfer, or rearrangement
of such party's facilities.
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(b) Applicant shall reimburse SWBT for the costs incurred by
SWBT for work performed by SWBT on Applicant's behalf in
accordance with the provisions of this article; provided,
however, that when the costs incurred by SWBT are for work
performed in part for Applicant and in part for SWBT and
third parties, Applicant shall only reimburse SWBT for
Applicant's pro-rata share of the costs.
ARTICLE 16: INSPECTION BY SWBT OF APPLICANT'S FACILITIES
16.01 SWBT's Right to Make Periodic or Spot Inspections. SWBT shall have
the right, but not the duty, to make periodic or spot inspections at any time of
any or all facilities attached to SWBT's poles or placed within SWBT's poles,
ducts, conduits, or rights-of-way. Inspections of Applicant's facilities may be
conducted for the purpose of determining whether facilities attached to SWBT's
poles or placed in SWBT's conduit system are in compliance with the terms of
this Agreement and conform to licenses subject to this Agreement. Charges for
inspections shall be allocated among all parties benefiting from the inspection
in accordance with the Pole Attachment Act and applicable rules, regulations,
and commission orders. When an inspection is conducted for the specific purpose
of auditing or investigating Applicant's compliance with this Agreement, SWBT
may charge Applicant for inspection expenses only if the inspection reflects
that Applicant is in substantial noncompliance with the terms of this Agreement.
If the inspection reflects that Applicant's facilities are not in compliance
with the terms of this Agreement, Applicant shall bring its facilities into
compliance promptly after being notified of such noncompliance and shall notify
SWBT in writing when the facilities have been brought into compliance.
16.02 Report of Inspection Results. SWBT will provide Applicant the results
of any inspection of Applicant's facilities performed under Section 16.01 of
this Agreement.
16.03 Post-installation Inspections. This article does not apply to
post-installation inspections performed as part of a pre-license survey in those
cases when Applicant has occupied space on or in SWBT's poles, ducts, conduits,
or rights-of-way prior to the issuance of a license pursuant to Section 8.03 of
this Agreement.
ARTICLE 17: TAGGING OF FACILITIES AND
UNAUTHORIZED ATTACHMENTS
17.01 Facilities to Be Marked. Applicant shall tag or otherwise xxxx all of
Applicant's facilities placed on or in SWBT's poles, ducts, conduits, and
rights-of-way in a manner sufficient to identify the facilities as Applicant's
facilities.
17.02 Removal of Untagged Facilities. Subject to the provisions of
subsections (a)-(d) of this section, SWBT may, without notice to any person or
entity, remove from SWBT's poles or any part of SWBT's conduit system any
untagged or unmarked facilities, including any such facilities owned or used by
Applicant, if SWBT determines
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that such facilities are not the subject of a current license authorizing their
continued attachment to SWBT's poles or occupancy of SWBT's conduit system and
are not otherwise lawfully present on SWBT's poles or in SWBT's conduit system.
(a) Before removing any such untagged or unmarked facilities,
SWBT shall first attempt to determine whether the facilities
are being used by Applicant or any other firm, are
authorized by any license subject to this Agreement, or are
otherwise lawfully present on SWBT's poles or in SWBT's
conduit system.
(b) SWBT shall not remove untagged or unmarked facilities which
are thought to be operational without first making
reasonable efforts to (1) determine the identity of the
owner or other person or entity thought to be responsible
for the facilities and (2) give advance written notice to
such person or entity.
(c) If the facilities appear to be facilities of Applicant
described in a current license or application subject to
this Agreement, SWBT shall give written notice to Applicant
requesting Applicant to tag or xxxx the facilities within 60
days and Applicant shall either tag the facilities within
the 60-day period, advise SWBT in writing of its schedule
for tagging the facilities, or notify SWBT in writing that
it disclaims ownership of or responsibility for the
facilities. If Applicant disclaims ownership of or
responsibility for the facilities, Applicant shall disclose
to SWBT the identity of the owner or other person or entity,
if any, thought by Applicant to be responsible for the
facilities.
(d) If the facilities appear to be facilities used by Applicant
but not subject to a current license granted under this
Agreement, the provisions of Sections 17.05-17.12 shall
apply.
17.03 Verification That Presently Attached Facilities Are Subject to
Existing Licenses. Applicant warrants and represents that, to the best of its
information and belief, all facilities presently owned or used by Applicant and
attached to SWBT's poles or occupying space within any part of SWBT's conduit
system in this State have been disclosed to SWBT and are subject to current
licenses or are otherwise lawfully present on or in SWBT's poles, ducts, and
conduits. If Applicant determines that any such facilities are not the subject
of current licenses, Applicant shall so advise SWBT and promptly apply for
licenses for such facilities or remove the facilities from SWBT's poles or
conduits. Nothing contained in this section shall be construed as requiring
Applicant to make a field audit of its existing facilities to confirm the
licensing status of its facilities as a prerequisite to entering into this
Agreement.
17.04 Updating of Plant Location Records. Applicant shall furnish SWBT,
upon request, with such information as may from time to time be necessary for
SWBT to
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correct and update SWBT's pole and conduit maps and records, cable plat maps,
and other plant location records recording or logging assignments of pole, duct,
and conduit space.
17.05 Notice to Applicant. If any of Applicant's facilities for which no
license is presently in effect are found attached to SWBT's poles or anchors or
within any part of SWBT's conduit system, SWBT, without prejudice to other
rights or remedies available to SWBT under this Agreement, and without prejudice
to any rights or remedies which may exist independent of this Agreement, shall
send a written notice to Applicant advising Applicant that no license is
presently in effect with respect to the facilities and that Applicant must,
within 60 days, respond to the notice as provided in Section 17.06 of this
Agreement.
17.06 Applicant's Response. Within 60 days after receiving a notice under
Section 17.05 of this Agreement, Applicant shall acknowledge receipt of the
notice and submit to SWBT, in writing, either:
(a) a denial or disclaimer of ownership or other interest in the
facilities, together with an explanation of the factual and
claimed legal basis for such denial or disclaimer;
(b) a statement that the facilities are the subject of a current
license, together with an explanation of the factual and
claimed legal basis for Applicant's assertion that the
facilities are currently licensed, or a statement that no
license is required, and an explanation of the factual and
claimed legal basis for that assertion; or
(c) an application for a new or amended license with respect to
such facilities, together with a full and complete
explanation of the circumstances under which such facilities
were attached to, placed within, or allowed to remain on or
in SWBT's poles or any part of SWBT's conduit system. Such
explanation shall include, at a minimum, the following:
(1) the date (or estimated date) when such facilities were
attached to SWBT's poles or placed in SWBT's conduit
system, and the factual basis supporting Applicant's
selection of such date (or estimated date); and
(2) the factual basis for Applicant's assertion, if any,
that decisions to attach, place or allow the facilities
to remain on or in SWBT's poles or conduit system were
made in good faith and without intent to circumvent
SWBT's pole attachment or conduit occupancy licensing
requirements.
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17.07 Denial or Disclaimer of Ownership or Other Interest. Applicant's
submission to SWBT of a denial or disclaimer of ownership or other interest in
the facilities shall constitute Applicant's waiver of any objection Applicant
may have to SWBT's removal of the facilities. Submission of such a denial or
disclaimer shall not be construed as an agreement by Applicant to pay any
charges associated with removal of the facilities and shall be deemed to be a
denial of any such responsibility; provided, however, that nothing contained in
this section shall prohibit SWBT from invoking the dispute resolution process
or filing suit, in a court of competent jurisdiction, to establish that
Applicant is liable to SWBT for the costs of removal notwithstanding its denial
or disclaimer.
17.08 Review by SWBT of Licensing Status. Within 15 business days after
receiving Applicant's statement that the facilities are the subject of a
current license or that no license is required, SWBT shall review Applicant's
explanation of the factual and claimed legal basis for Applicant's assertions
and shall advise Applicant, in writing, whether it agrees or disagrees with
Applicant's assertions. If SWBT agrees with Applicant's assertions, the
parties may amend the applicable license and no further action shall be
required of Applicant. If SWBT does not accept Applicant's position, Applicant
shall, within 15 business days, apply for a new or amended license as provided
by Section 17.06(c) of this Agreement.
17.09 Approval of License and Retroactive Charges. If SWBT approves
Applicant's application for a new or amended license, Applicant shall be liable
to SWBT for all fees and charges associated with the unauthorized attachments
as specified in Section 17.10 of this Agreement. The issuance of a new or
amended license as provided by this article shall not operate retroactively or
constitute a waiver by SWBT of any of its rights or privileges under this
Agreement or otherwise.
17.10 Fees and Charges. This section applies to fees and charges with
respect to Applicant's facilities placed on or in SWBT pole, duct, or conduit
space which has not been assigned to Applicant. Applicant shall be liable to
SWBT for all fees and charges associated with any such unauthorized pole
attachments or conduit occupancy for which it is responsible. Attachment and
occupancy fees and charges shall continue to accrue until the unauthorized
facilities are removed from SWBT's poles or conduit system and shall include,
but not be limited to, all fees and charges which would have been due and
payable if Applicant and its predecessors had continuously complied with all
applicable SWBT licensing requirements. Such fees and charges shall be due and
payable 30 days after the date of the xxxx or invoice stating such fees and
charges. The parties shall engage in good faith discussions to reach a
mutually agreed determination as to the amount due and owing. In some cases,
it may be impractical, unduly difficult, or uneconomical to determine the
actual amount of fees which would have been due and payable if all licensing
requirements had been met. Therefore, if the parties, through good faith
discussions fail to reach agreement on the amount due and owing, and if the
amount due and owing cannot be determined due to Applicant's inability to
provide the information required to determine the correct amount, the amount
owing with respect to each
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unauthorized attachment or occupancy shall be equal to three times the annual
attachment and occupancy fees in effect on the date Applicant is notified by
SWBT of the unauthorized attachment or occupancy. Payment of such fees shall be
deemed liquidated damages and not a penalty. In addition, Applicant shall
rearrange or remove its unauthorized facilities at SWBT's request to comply with
applicable placement standards, shall remove its facilities from any space
occupied by or assigned to SWBT or another joint user, and shall pay SWBT for
all costs incurred by SWBT in connection with any facilities rearrangements,
modifications, or replacements necessitated as a result of the presence of
Applicant's unauthorized facilities.
17.11 Removal of Unauthorized Attachments. If Applicant does not apply
for a new or amended pole attachment license with respect to unauthorized
facilities within the specified period of time, or if such application is
received and specifically disapproved, SWBT shall by written notice request to
Applicant to remove its unauthorized facilities not less than 60 days from the
date of notice and Applicant shall remove the facilities within the time
specified in the notice; provided, however, that SWBT may request Applicant to
remove such facilities at an earlier date if such earlier removal is necessary
for reasons beyond SWBT's control. If the facilities have not been removed
within the time specified in the notice, SWBT may, at SWBT's option, remove
Applicant's facilities at Applicant's expense.
17.12 No Ratification of Unlicensed Attachments or Unauthorized Use of
SWBT's Facilities. No act or failure to act by SWBT with regard to any
unlicensed attachment or occupancy or unauthorized use of SWBT's facilities
shall be deemed to constitute a ratification by SWBT of the unlicensed
attachment or occupancy or unauthorized use, nor shall the payment by Applicant
of fees and charges for unauthorized pole attachments or conduit occupancy
exonerate Applicant from civil or criminal liability for any deliberate trespass
or other illegal or wrongful conduct in connection with the placement or use of
such unauthorized facilities.
ARTICLE 18: REMOVAL OF APPLICANT'S FACILITIES
18.01 Responsibility for Removing Facilities. Applicant shall be
responsible for and shall bear all expenses arising out of or in connection
with the removal of its facilities from SWBT's poles, ducts, conduits, and
rights-of-way. Such removals shall be performed in accordance with the
provisions of this article.
(a) When practicable, Applicant shall give SWBT at least 30 days'
advance notice in writing of its intent to remove facilities
from any part of SWBT's conduit system and the proposed method
of removal. The notice shall include the locations of the
facilities to be removed, the name and telephone number of the
manager responsible for removal of the facilities, and the
estimated dates when removal of the facilities will begin and
end.
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(b) Applicant shall, if requested by SWBT to do so, place a pull
mandrel (slug) through all or any specified part of the
duct which was occupied by Applicant.
(c) Except as otherwise agreed upon in writing by the parties,
Applicant must, after removing its facilities, plug all
previously occupied ducts at the entrances to SWBT's manholes
(if SWBT would itself plug the ducts under the same
circumstances) in accordance with the standards set by
SWBT for its own operations, provided that such standards have
been communicated in writing to Applicant at least 60 days in
advance of the removal of Applicant's facilities.
(d) Applicant shall be solely responsible for the removal of its
own facilities from SWBT's poles, ducts, conduits, and
rights-of-way and for (1) paying all persons and
entities which provide materials, labor, access to real or
personal property, or other goods or services in connection
with the removal of Applicant's facilities from SWBT's poles,
ducts, conduits, or rights-of-way and (2) directing the
activities of all such personnel while they are physically
present on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way.
(e) When Applicant no longer intends to occupy space on a SWBT pole
or in a SWBT duct or conduit, Applicant will provide written
notification to SWBT that it wishes to terminate the license
with respect to such space and will remove its facilities from
the space described in the notice. Upon removal of Applicant's
facilities, the license shall terminate and the space shall be
available for reassignment.
18.02 Removal of Facilities Not in Active Use. At SWBT's request,
Applicant shall remove from SWBT's poles, ducts, conduits, and rights-of-way
any of Applicant's facilities which are no longer in active use; provided,
however, that Applicant shall not be required to remove such facilities when
due cause and justification exists for allowing them to remain in place.
Applicant shall not be required to remove retired or inactive (dead) cables
that have been overlashed by other facilities which remain in active use unless
removal expenses are paid by the person or entity requesting removal of such
facilities. Applicant shall not be required to remove cables that would
require excavation to remove unless the person or entity requesting removal of
such cables bears the expenses of such excavation in a manner analogous to the
provisions of Section 10.02(c) of this Agreement. Applicant shall not abandon
any of its facilities by leaving them on SWBT's poles, in SWBT's ducts,
conduits, or rights-of-way, at any location where they may block or obstruct
access to SWBT's poles or any part of SWBT's conduit system, or on any public
or private property (other than property owned or controlled by Applicant) in
the vicinity of SWBT's poles, ducts, conduits, or rights-of-way.
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18.03 Removal Following Termination of License. Applicant shall remove
its facilities from SWBT's poles, ducts, conduits, or rights-of-way within 60
days, or within such other period of time as shall be mutually agreeable to the
parties, after termination of the license authorizing the attachment of such
facilities to SWBT's poles or the placement of such facilities in SWBT's ducts,
conduits, or rights-of-way.
18.04 Removal Following Replacement of Facilities. Applicant shall remove
facilities no longer in service from SWBT's poles or conduit system within 60
days, or within such other period of time as shall be mutually agreeable to the
parties, after the date Applicant replaces existing facilities on a pole or in
a conduit with substitute facilities on the same pole or in the same conduit;
provided, however, that removal of facilities from the maintenance duct shall
be governed by Sections 12.04, 13.03, and 15.02 of this Agreement and not by
this section.
18.05 Removal to Avoid Forfeiture. If the presence of Applicant's
facilities on SWBT's poles or in SWBT's ducts, conduits, or rights-of-way would
cause a forfeiture of the rights of SWBT to occupy the property where such
pole, duct, conduit, or right-of-way is located, SWBT will promptly notify
Applicant in writing and Applicant shall not, without due cause and
justification, refuse to remove its facilities within such time as may be
required to prevent such forfeiture. SWBT will give Applicant not less than 60
days from the date of notice to remove Applicant's facilities unless prior
removal is required to prevent the forfeiture of SWBT's rights. At Applicant's
request, the parties will engage in good faith negotiations with each other,
with joint users, and with third-party property owners and cooperatively take
such other steps as may be necessary to avoid the unnecessary removal of
Applicant's facilities in the face of a threatened forfeiture.
18.06 Notice of Completion of Removal Activities. Applicant shall give
written notice to SWBT stating the date on which the removal of its facilities
from SWBT's poles, ducts, conduits, and rights-of-way has been completed.
Charges shall continue to accrue with respect to such facilities until
Applicant's facilities have been removed, pull mandrels (slugs) have been
pulled if required by Section 18.01(b) of this Agreement, Applicant has plugged
all previously occupied ducts at the entrances to SWBT's manholes as required
by Section 18.01(c) of this Agreement, and the notice required by this section
has been given.
18.07 Removal of Facilities by SWBT; Notice of Intent to Remove. If
Applicant fails to remove its facilities from SWBT's poles, ducts, or conduits
in accordance with the provisions of Sections 18.01-18.06 of this Agreement,
SWBT may remove such facilities and store them at Applicant's expense in a
public warehouse or elsewhere without being deemed guilty of trespass or
conversion and without becoming liable to Applicant for any injury, loss, or
damage resulting from such actions. SWBT shall give Applicant not less than 60
days prior written notice of its intent to remove Applicant's facilities
pursuant to this section. The notice shall state:
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(a) the date when SWBT plans to commence removal of Applicant's
facilities, and that Applicant may remove the facilities at
Applicant's sole cost and expense at any time before the date
specified;
(b) SWBT's plans with respect to disposition of the facilities
removed; and
(c) that Applicant's failure to remove the facilities or make
alternative arrangements with SWBT for removal and disposition
of the facilities shall constitute an abandonment of the
facilities and of any interest therein.
18.08 Removal of Facilities by SWBT. If SWBT removes any of Applicant's
facilities pursuant to this article, Applicant shall reimburse SWBT for SWBT's
costs in connection with the removal, storage, delivery, or other disposition
of the removed facilities.
18.09 Reattachment or Subsequent Attachment Following Removal. After
Applicant's facilities have been properly removed pursuant to the provisions of
this article, neither the removed facilities nor replacement facilities shall
be attached to SWBT's poles or placed in SWBT's conduit system until Applicant
has first submitted new applications for the facilities and complied with the
provisions of this Agreement.
ARTICLE 19: RATES, FEES, CHARGES, AND BILLING
19.01 Rates, Charges and Fees Subject to Applicable Laws, Regulations,
Rules, and Commission Orders. All rates, charges and fees set forth in this
Agreement, including rates, charges and fees set forth in APPENDIX I (Schedule
of Rates, Fees, and Charges), shall be subject to all applicable federal and
state laws, rules, regulations, and commission orders, including but not limited
to (a) the Pole Attachment Act and rules, regulations, and commission orders
issued thereunder and (b) applicable orders of the State Commission in
interconnection arbitration proceedings.
19.02 Schedule of Rates, Fees, and Charges. SWBT's current schedule of
rates, fees, and charges is attached to this Agreement as APPENDIX I and
incorporated herein as an integral part of this Agreement.
19.03 Pole Attachment and Conduit Occupancy Fees. Until such time as the
FCC authorizes the charging of different rates to cable television systems and
telecommunications carriers, SWBT's annual rates for access to poles, ducts,
conduits, and rights-of-way shall be the same for cable television systems and
telecommunications carriers. For all attachments to SWBT's poles and occupancy
of SWBT's ducts and conduits, Applicant will pay SWBT's semiannual pole
attachment and conduit occupancy fees as specified in APPENDIX I. Pole
attachment and conduit occupancy fees shall be assessed and billed with respect
to (a) occupied space whether or not subject to a current license and (b)
assigned space as well as occupied space. Fees for pole attachments shall
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be based on the number of Applicant's pole attachments as of the date of billing
by SWBT and shall be calculated in accordance with applicable FCC rules,
regulations, and orders. Fees for conduit occupancy shall be based on the
number of duct feet occupied by or assigned to Applicant as of the date of
billing by SWBT and shall be calculated in accordance with applicable FCC
rules, regulations, and orders.
19.04 Billing for and Payment of Pole Attachment and Conduit Occupancy
Fees. Pole Attachment and conduit occupancy fees under this Agreement and
licenses subject to this Agreement shall be payable semiannually in advance.
(a) Bills shall be submitted to Applicant for two semiannual
billing periods, the first period including charges for the
months of January through June and the second including
charges for the months of July through December.
(b) Charges associated with newly licensed pole attachments and
conduit occupancy shall be prorated on a daily basis and billed
with the next semiannual xxxx.
(c) Charges shall be adjusted and retroactively prorated on a daily
basis following the removal of Applicant's facilities and shall
be retroactively adjusted as a credit on the next semiannual
xxxx.
19.05 Application Fees. SWBT does not currently charge application fees
in connection with requests for access to poles, ducts, conduits, and
rights-of-way. SWBT does, however, impose charges, on a case-by case basis,
for work performed in processing applications for access and preparing SWBT's
poles, ducts, conduits, and rights-of-way to accommodate the facilities of
parties seeking access.
19.06 Charges for Pre-license Survey Work. Subject to applicable
commission orders, Applicant will pay SWBT's charges for pre-license survey
work associated with the processing of Applicant's request for access. SWBT's
pre-license survey charges are not set on a fixed fee basis and will vary from
case-to-case depending on such factors as the number and location of the poles,
ducts, conduits, and rights-of-way subject to Applicant's access request, the
completeness and quality of information submitted by the Applicant in its
application, the nature of the facilities to be placed by Applicant, and the
nature and extent of facilities modification, capacity expansion, and
make-ready work proposed by Applicant.
19.07 Charges for Facilities Modifications, Capacity Expansions, and
Make-ready Work. Subject to applicable commission orders, Applicant will pay
SWBT's charges for facilities modification, capacity expansion, and make-ready
work performed by SWBT, or by persons acting on SWBT's behalf, as provided in
other provisions of this Agreement and APPENDIX I.
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19.08 Contract Administration Fee. Subject to applicable commission
orders, SWBT may charge Applicant a one-time contract administration as
provided in APPENDIX I. This fee, if applicable, shall be assessed for work
performed in the initial processing of this Agreement and shall be
non-refundable upon acceptance of this Agreement by SWBT.
19.09 Administrative Record-keeping Fees. Subject to applicable
commission orders, SWBT may charge Applicant cost-based administrative
record-keeping fees (e.g., fees associated with records and billing changes
resulting from the sale, consolidation, or other transfer of Applicant's
business or facilities, name changes, and the like) as provided in APPENDIX I.
19.10 Charges for Work Performed by SWBT Employees. Except as otherwise
specifically required by applicable commission orders, SWBT's charges to
Applicant for worked performed by SWBT employees pursuant to this Agreement
shall be computed by multiplying the fully loaded hourly rates for such
employees times the number of hours required to perform the work. Disputes
over SWBT's charges for work performed by SWBT employees, including disputes
between the parties concerning the number of hours required to perform the
work, shall be subject to the dispute resolution procedures of Article 30.
Notwithstanding the execution of this Agreement, Applicant shall have the right
to challenge the methodology utilized by SWBT to determine hourly rates for
SWBT employees at any time in any forum having jurisdiction over the subject
matter.
19.11 Due Date for Payment, Interest on Past Due Invoices, Remedies for
Non-payment and Procedures for Disputing Charges. For fees and charges other
than charges for make-ready work, each xxxx or invoice submitted by SWBT to
Applicant shall state the date that payment is due, which date shall be not
less than 60 days after the date of the xxxx or invoice. Applicant will pay
each such xxxx or invoice on or before the stated due date. For make-ready
work, the payment due date shall be not less than 30 days after the date of the
xxxx or invoice.
(a) Interest on past due bills and invoices shall accrue at the
rate of 12% per annum, or the maximum rate allowed by law,
whichever is less.
(b) Applicant's failure to pay SWBT's fees and charges shall be
grounds for terminating this Agreement and licenses subject to
this Agreement.
(c) If Applicant fails to pay, when due, any fees or charges billed
to Applicant under this Agreement, and any portion of such fees
or charges remains unpaid more that 15 calendar days after the
due date, SWBT may send Applicant a written notice advising
Applicant that this Agreement, or specified licenses subject to
this Agreement, may be terminated if such fees or charges are
not paid within 15 calendar days after the date of the notice.
Applicant must remit to SWBT all such unpaid fees or charges,
whether disputed or undisputed, within 15 days
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after the date of the notice. If Applicant pays disputed fees
under protest, and it is later determined that such fees or any
portion thereof should be refunded, the portion of fees to be
refunded shall be refunded with interest at the rate of 12% per
annum or the maximum rate allowed by law, whichever is less.
(d) Applicant may dispute any fees or charges billed by SWBT to
Applicant under this Agreement by invoking the dispute
resolution procedures set forth in Article 30 of this Agreement.
(e) If Applicant does not dispute such fees or charges and any
portion of such undisputed fees or charges remains unpaid 30
calendar days after the date of the notice, SWBT may, to the
extent permitted by the Pole Attachment Act and applicable
rules, regulations, and commission orders, terminate this
Agreement and licenses subject to this Agreement, suspend the
processing of pending applications for access to SWBT's poles,
ducts, conduits, and rights-of-way located in this State, and
refuse to accept further applications for access until such
undisputed fees or charges, together with accrued interest
thereon, have been paid in full.
19.12 Modification of Rates, Fees and Charges. Subject to applicable
federal and state laws, rules, regulations, and commission orders, SWBT shall
have the right to modify all rates, charges and fees set forth in this
Agreement, including but not limited to those listed in APPENDIX I, as provided
in this section.
(a) Upon written notice to Applicant, SWBT may change, on a
going-forward basis, the amounts of any rates, fees or charges
assessed under this Agreement. Pole attachment and conduit
occupancy rates shall not be increased more than once annually.
(1) The notice shall state the effective date of the changes,
which, in the event of a rate increase, shall be no earlier
than the 60th day after the notice is given.
(2) The changes shall be effective on the effective date
stated in the notice unless stayed or prohibited by a
court or agency of competent jurisdiction.
(3) The changes shall be reflected on the first semiannual
xxxx issued on or after the effective date specified in the
notice.
(b) If the rates, fees and charges set forth in the notice are not
acceptable to Applicant, Applicant may, notwithstanding any
other provisions of this Agreement, at Applicant's option (1)
seek the renegotiation of this Agreement, (2) terminate this
Agreement, or (3) seek relief through the
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dispute resolution process or before a court or agency of
competent jurisdiction.
19.13 Disputes Over Charging Methodologies. The parties acknowledge that
the Pole Attachment Act grants the FCC regulatory authority over the rates,
terms, and conditions of access to poles, ducts, conduits, and rights-of-way.
The parties further acknowledge that, as of the date of this Agreement, this
State has not elected to assume reverse preemptive regulatory authority over
such rates, terms, and conditions by certifying to the FCC that it has made
such election. Accordingly, complaints concerning and challenges to SWBT's
charging methodologies shall be brought, in the first instance, before the FCC
in accordance with FCC procedural rules unless this State elects to preempt FCC
regulation of pole attachment rates, terms, and conditions of access; provided,
however, that nothing contained in this section shall be construed as affecting
the right of either party to seek relief from any court or agency of competent
jurisdiction in connection with the negotiation, arbitration, and approval of
interconnection agreements under 47 U.S.C. Section 252.
ARTICLE 20: PERFORMANCE AND PAYMENT BONDS
20.01 Bond May Be Required. SWBT may require Applicant, authorized
contractors, and other persons acting on Applicant's behalf to execute
performance and payment bonds (or provide other forms of security) in amounts
and on terms sufficient to guarantee the performance of their respective
obligations arising out of or in connection with this Agreement only as
provided in subsections (a)-(b) of this section and Section 20.02. Bonds shall
not be required for entities meeting all self-insurance requirements of Section
23.02 of this Agreement.
(a) If Applicant elects to perform make-ready or facilities
modification work under Section 6.08(c) or Sections 10.02-10.05
of this Agreement, SWBT may require Applicant, authorized
contractors, and other persons acting on Applicant's behalf to
execute bonds equivalent to those which would be required by
SWBT if the work had been performed by contractors,
subcontractors, or other persons selected directly by SWBT. No
bonds shall be required of Applicant, authorized contractors, or
other persons acting on Applicant's behalf except in those
situations where a bond would be required if the work were being
performed on SWBT's behalf.
(b) No other bond shall be required of Applicant to secure
obligations arising under this Agreement in the absence of due
cause and justification.
(c) If a bond or similar form of assurance is required of
Applicant, an authorized contractor, or other person acting on
Applicant's behalf, Applicant shall promptly submit to SWBT,
upon request, adequate proof that the bond remains in full
force and effect and provide certification
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from the company issuing the bond that the bond will not be
cancelled, changed or materially altered without first providing
SWBT 60 days written notice.
(d) SWBT may communicate directly with the issuer of any bond
required by SWBT pursuant to this section to verify the terms of
the bond, to confirm that the bond remains in force, and to make
demand on the issuer for payment or performance of any
obligations secured by the bond.
20.02 Payment and Performance Bonds in Favor of Contractors and
Subcontractors. Applicant shall be responsible for paying all employees,
contractors, subcontractors, mechanics, materialmen and other persons or
entities performing work or providing materials in connection with (a) the
performance of facilities modification, capacity expansion, or make-ready work
by Applicant, authorized contractors, or other persons acting on Applicant's
behalf under Sections 6.08(c) and 10.02-10.05 of this Agreement or (b) the
construction, attachment, use, inspection, maintenance, repair, rearrangement,
modification, and removal of any of Applicant's facilities attached or to be
attached to SWBT's poles or placed or to be placed within SWBT's ducts,
conduits, or rights-of-way. In the event any claim or demand is made on SWBT
by any such employee, contractor, subcontractor, mechanic, materialman, or
other person or entity providing such materials or performing such work, SWBT
may require, in addition to any security provided under Section 20.01 of this
Agreement, that Applicant execute payment or performance bonds, or provide such
other security, as SWBT may deem reasonable or necessary to protect SWBT from
any such claim or demand.
ARTICLE 21: INDEMNIFICATION
21.01 Risks Associated with Outside Plant Operations. The parties
acknowledge that SWBT's outside plant facilities include thousands of miles of
pole lines, conduits, and rights-of-way located on public and private property
throughout SWBT's service area, that SWBT cannot control or continuously monitor
activities that occur at these sites, and that the risks associated with outside
plant operations and facilities are not similar to the risks associated with
operations occurring inside SWBT's central offices and other secure SWBT
buildings and structures. The parties further acknowledge that the presence of
multiple firms on or in poles, ducts, conduits, and rights-of-way owned or
controlled by SWBT requires that liability risks be fairly allocated between the
parties and that it is the parties' intent to allocate such risks in a just,
reasonable, and nondiscriminatory manner which addresses known risks associated
with the outside plant environment and activities and conditions at outside
plant locations.
21.02 Control of Premises. Applicant acknowledges that its employees and
other persons acting on Applicant's behalf, and employees of joint users and
other persons acting on behalf of joint users, will be present, without
supervision or control by SWBT, and in many cases without SWBT's knowledge, on,
within, and in the vicinity of
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SWBT's poles, ducts, conduits, and rights-of-way. During those times when
Applicant's employees and personnel are present at such sites, Applicant shall
be deemed, for the purpose of allocating liabilities between the parties, to be
an independent contractor in control of the premises except as otherwise
provided in this section. Although SWBT inspectors may be present at the site of
work being performed by Applicant or persons acting on Applicant's behalf, such
inspectors shall have no authority to direct Applicant or personnel acting on
Applicant's behalf concerning the method or manner by which the work is to be
performed, and the presence of a SWBT inspector shall not result in SWBT's being
deemed to be in control of the premises. When both parties are present and
performing work operations at a site subject to this section, SWBT and Applicant
shall be deemed to be jointly in control of the premises. When poles, ducts,
conduits, or rights-of-way occupy property owned by third parties, neither party
shall be deemed to be in control of the premises, except as otherwise provided
by law, at times when such party's work operations are not in progress. Work
operations shall be considered to be in progress from the time work commences
until such work is completed whether or not employees of a party or persons
acting on such party's behalf are actually present at the site.
21.03 INDEMNITY AGAINST AND LIMITATIONS OF LIABILITY WITH RESPECT TO
CERTAIN NEGLIGENT ACTS AND OMISSIONS. THIS ARTICLE INCLUDES PROVISIONS
INDEMNIFYING EACH PARTY FROM LIABILITIES ARISING OUT OF OR IN CONNECTION WITH
CERTAIN NEGLIGENT ACTS AND OMISSIONS OF SUCH PARTY. THIS ARTICLE ALSO INCLUDES
PROVISIONS LIMITING THE LIABILITIES OF EACH PARTY ARISING OUT OF OR IN
CONNECTION WITH CERTAIN NEGLIGENT ACTS AND OMISSIONS OF SUCH PARTY.
21.04 Indemnities Excluded. Except as otherwise specifically provided in
this article, neither party (as an "indemnifying party") shall be required to
indemnify or defend the other party (as an "indemnified party") against, or
hold the indemnified party harmless from, any suit, claim, demand, loss,
damage, liability, fine, penalty, or expense arising out of:
(a) any breach by the indemnified party of any provision of this
Agreement or any breach by the indemnified party of the parties'
interconnection agreement, if any;
(b) the violation of any law by any employee of the indemnified
party or other person acting on the indemnified party's behalf;
(c) willful or intentional misconduct or gross negligence committed
by any employee of the indemnified party or by any other person
acting on the indemnified party's behalf; or
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(d) any negligent act or acts committed by any employee of the
indemnified party or other person acting on the indemnified
party's behalf, if such negligent act or acts are the sole
producing cause of the injury, loss, or damage giving rise to
the suit, claim, demand, loss, damage, liability, fine, penalty,
or expense for which indemnity is requested.
21.05 Workplace Injuries. The parties acknowledge that injuries may occur
at sites where work is being performed by or for either party and that primary
responsibility for preventing workplace injuries shall be placed on the party
controlling work operations at the site. Workplace injuries may result from
any of variety of causes, including but not limited to electrocution associated
with contact with electric power lines on poles or use of defective equipment,
falls from poles resulting from the negligence of the injured person or
co-workers or due to the existence of unsafe conditions on or in the vicinity
of the pole, cave-ins and other accidents at excavation sites, explosion of
combustible gases within or in the vicinity of a conduit system, exposure to
hazardous substances or noxious gases at the site, acts of God, and acts and
omissions of third parties over whom neither party has control. Except as
expressly provided in this Agreement to the contrary, each party shall
indemnify, on request defend, and hold the other party harmless from any and
all suits, claims, demands, losses, damages, liabilities, fines, penalties, or
expenses of every kind and character, on account of or in connection with any
injury, loss, or damage suffered by any person, which arises out of or in
connection with the personal injury or death of any employee of the
indemnifying party (or other person acting on the indemnifying party's behalf)
if such injury or death results, in whole or in part, from any occurrence or
condition on, within, or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way; provided, however, that Applicant's indemnification duties under
this section shall arise only if the person injured is present at such site in
connection with the performance or anticipated performance of any act required
or permitted to be performed by Applicant or by persons acting on Applicant's
behalf pursuant to this Agreement. Indemnities provided by this section shall
be subject to the exclusions set forth in Section 21.04 and include but are not
limited to indemnities arising out of or in connection with claims arising from
or in any way connected with any injury, sickness, disease, or death of any
employee of the indemnifying party or any person acting on the indemnifying
party's behalf attributable or allegedly attributable to occurrences or
conditions on, within, or in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way. EXCEPT AS PROVIDED ABOVE IN SUBSECTIONS 21.04(c)-(d), THE
INDEMNIFYING PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION SHALL ARISE
EVEN IF THE INJURY, SICKNESS, DISEASE, OR DEATH WAS ATTRIBUTABLE IN PART TO
NEGLIGENT ACTS OR OMISSIONS OF THE INDEMNIFIED PARTY.
21.06 Other Claims Brought Against Either Party by Employees and Other
Persons Acting on the Other Party's Behalf. Nothing contained in this
Agreement shall create any contractual liability or other liability on the part
of either party to any employee, contractor, or subcontractor of the other
party or any other person acting on the other party's behalf. Each party shall
indemnify, on request defend, and hold the other
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party harmless from any and all suits, claims, demands, losses, damages,
liabilities, or expenses of every kind and character (other than workplace
injury claims subject to Section 21.05 above) made, brought, or sought against
the indemnified party by any employee, contractor, or subcontractor of the
indemnifying party or by any other person acting on the indemnifying party's
behalf; provided, however, that this section shall apply only to suits, claims,
demands, losses, damages, liabilities, or expenses related to the subject matter
of this Agreement. Indemnities provided by this section shall be subject to the
exclusions set forth in Section 21.04 and include but are not limited to
indemnities arising out of or in connection with claims arising from or in any
way connected with the employment relationship or other claimed relationship
between the indemnifying party and the employee, contractor, subcontractor, or
other person acting on the indemnifying party's behalf; claims arising out of
disputes over payments due or allegedly due to any employee, contractor,
subcontractor, or other person acting on the indemnifying party's behalf; and
claims arising out of other contract disputes between the indemnifying party and
the employee, contractor, subcontractor, or other person acting on the
indemnifying party's behalf. EXCEPT AS PROVIDED ABOVE IN SUBSECTIONS
21.04(c)-(d), THE INDEMNIFYING PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS
SECTION SHALL ARISE EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR OMISSIONS OF
THE INDEMNIFIED PARTY.
21.07 Claims Brought Against Either Party by Vendors, Suppliers,
Customers, and other Persons in Privity of Contract with the Other Party. The
parties acknowledge that neither party controls the contractual relationships
between the other party and vendors, suppliers, customers, and other persons in
privity of contract with the other party and that nothing contained in this
Agreement shall create any contractual or other liability of either party to
any vendor, supplier, customer, or other person or entity in privity of
contract with the other party. Each party shall indemnify, on request defend,
and hold the other party harmless from any and all suits, claims, demands,
losses, damages, liabilities, or expenses of every kind and character, made,
brought, or sought against the indemnified party by any vendor, supplier, or
customer of the indemnifying party or by any other person or entity in privity
with the indemnifying party; provided, however, that this section shall apply
only to suits, claims, demands, losses, damages, liabilities, or expenses
related to the subject matter of this Agreement or Applicant's use of SWBT's
poles, ducts, conduits, or rights-of-way. The indemnifying party may not, as a
defense to any obligations of the indemnifying party under this section, assert
that the indemnified party's claims against the indemnifying party are barred
by any tariff or contract limitation of liability applicable to the
indemnifying party's vendor, supplier, or customer or to such other person in
privity of contract with the indemnifying party. Indemnities provided by this
section shall be subject to the exclusions set forth in Section 21.04 and
include but are not limited to indemnities for claims against either party
arising out of or in connection with the failure by the other party to meet its
obligations (including but not limited to contract and tariff
obligations) to such other party's customers and suppliers. EXCEPT AS PROVIDED
ABOVE IN SUBSECTIONS 21.04(c)-(d), THE INDEMNIFYING PARTY'S INDEMNIFICATION
OBLIGATIONS UNDER THIS
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SECTION SHALL ARISE EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO NEGLIGENT ACTS OR OMISSIONS OF
THE INDEMNIFIED PARTY.
21.08 Claims Brought Against Either Party by Such Party's Own Employees,
Contractors, Subcontractors, or Other Persons Acting on Such Party's Behalf,
and Claims Brought Against Either Party by Such Party's Own Vendors, Suppliers,
Customers, or Other Persons in Privity of Contract with Such Party. Neither
party shall be entitled to indemnity, contribution, or subrogation from or by
the other party with respect to any suits, claims, demands, losses, damages,
liabilities, or expenses, of any kind or character, made, brought, or sought
against such party by any employee, contractor, or subcontractor of such party,
by any other person acting on behalf of such party, by any vendor, supplier, or
customer of such party, or by any other person or entity in privity of contract
with such party, if such suit, claim, demand, loss, damage, liability, or
expense arises directly out of or in connection with the subject matter of this
Agreement or the use by Applicant of SWBT's poles, ducts, conduits, or
rights-of-way. Indemnities excluded by this section include, but are not
limited to, indemnities for claims against either party arising out of or in
connection with employment-related disputes between either party and its
employees; claims against either party by contractors, subcontractors, and
suppliers performing work or supplying materials to SWBT sites at the request
of such party; and other failures by either party to meet its obligations
(including but not limited to contract and tariff obligations) to such party's
own customers and suppliers. THE INDEMNIFICATION EXCLUSIONS OF THIS SECTION
SHALL APPLY EVEN IF THE INJURY, LOSS, OR DAMAGE GIVING RISE TO THE
INDEMNIFICATION CLAIM WAS ATTRIBUTABLE IN PART TO THE NEGLIGENT ACTS OR
OMISSIONS OF THE INDEMNIFYING PARTY BUT SHALL NOT APPLY IF THE INJURY, LOSS, OR
DAMAGE GIVING RISE TO THE INDEMNIFICATION CLAIM AROSE FROM WILLFUL OR
INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE COMMITTED BY ANY EMPLOYEE OF THE
INDEMNIFYING PARTY OR ANY OTHER PERSON ACTING ON THE INDEMNIFYING PARTY'S
BEHALF OR AROSE FROM ANY NEGLIGENT ACT OR ACTS COMMITTED BY ANY EMPLOYEE OF THE
INDEMNIFYING PARTY OR OTHER PERSON ACTING ON THE INDEMNIFYING PARTY'S BEHALF,
IF SUCH NEGLIGENT ACT OR ACTS ARE THE SOLE PRODUCING CAUSE OF THE INJURY, LOSS,
OR DAMAGE GIVING RISE TO THE SUIT, CLAIM, DEMAND, LOSS, DAMAGE, LIABILITY,
FINE, PENALTY, OR EXPENSE FOR WHICH INDEMNITY IS REQUESTED.
21.09 Injuries to Third Parties and Third-party Property Owners Resulting
from the Parties' Conduct. Each party shall indemnify, on request defend, and
hold the other party harmless from any and all suits, claims, demands, losses,
damages, liabilities, fines, penalties, or expenses, of every kind and
character, on account of or in connection with the personal injury or death of
any third party or physical damage to real or personal property owned by a
third party, arising, in whole or in part, out of or in connection with the
conduct of employees of the indemnifying party or other persons acting on the
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indemnifying party's behalf while such employees or other persons are present
on, within, or in the vicinity of any SWBT pole, duct, conduit, or right-of-way
in connection with the performance or anticipated performance of any act
required or authorized to be performed pursuant to this Agreement. Indemnities
provided by this section shall be subject to the exclusions set forth in Section
21.04 and include but are not limited to indemnities arising out of or in
connection with personal injury, death, and property damage claims by third
parties based on willful or intentional misconduct and negligent acts and
omissions of the indemnifying party.
21.10 Indemnification for Environmental Claims. The parties acknowledge
that hazardous substances may be present on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way; that employees and other
persons acting on the parties' behalf working on, within, or in the vicinity of
SWBT's poles, ducts, conduits, or rights-of-way should be familiar with
environmental laws and environmental concerns which arise in outside plant
contexts; that all such employees and other persons should be prepared to
recognize and deal with environmental contingencies existing at specific sites;
and that liabilities associated with environmental claims arising out of or in
connection with the subject matter of this Agreement shall be allocated between
the parties as set forth in this section.
(a) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims, demands,
losses, damages, liabilities, fines, penalties, or expenses, of
every kind and character, on account of or in connection with
any injury, loss, or damage to any person or property, or to the
environment, arising out of or in connection with the violation
or breach, by any employee of the indemnifying party or other
person acting on the indemnifying party's behalf, of (1) any
federal, state, or local environmental statute, rule,
regulation, ordinance, or other law or (2) any provision or
requirement of this Agreement dealing with hazardous substances
or protection of the environment.
(b) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims, demands,
losses, damages, liabilities, fines, penalties, or expenses, of
every kind and character, on account of or in connection with
any injury, loss, or damage to any person or property, or to the
environment, arising out of or in connection with the release or
discharge, onto any public or private property, of any hazardous
substances, regardless of the source of such hazardous
substances, by any employee of the indemnifying party, or by any
person acting on the indemnifying party's behalf, while present
on, within, or in the vicinity of any SWBT pole, duct, conduit,
or right-of-way. Indemnities provided by this subsection include
but are not limited to indemnities arising out of or in
connection with the release or discharge of water and other
substances from SWBT's manholes or other conduit facilities.
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(c) Each party shall indemnify, on request defend, and hold the
other party harmless from any and all suits, claims, demands,
losses, damages, liabilities, fines, penalties, or expenses, of
every kind and character, on account of or in connection with
any injury, loss, or damage to any person or property, or to the
environment, arising out of or in connection with the removal or
disposal of any hazardous substances by the indemnifying party
or by any person acting on the indemnifying party's behalf, or
arising out of or in connection with the subsequent storage,
processing or other handling of such hazardous substances by any
person or entity after they have been removed by the
indemnifying party or persons acting on the indemnifying party's
behalf from the site of any SWBT pole, duct, conduit, or
right-of-way. For the purposes of this subsection, any person or
entity removing or disposing of hazardous substances at the
request of the indemnifying party or at the request of any
person acting on the indemnifying party's behalf, and any person
or entity subsequently receiving, storing, processing, or
otherwise handling such hazardous substances shall be considered
to be a person acting on the indemnifying party's behalf.
(d) Except as otherwise specifically provided in this section,
neither party shall be required to indemnify or defend the other
party against, or hold the other party harmless from any loss,
damage, claim, demand, suit, liability, fine, penalty or expense
for which the other party may be liable under any federal,
state, or local environmental statute, rule, regulation,
ordinance, or other law.
21.11 Miscellaneous Claims. Applicant shall indemnify, on request defend,
and hold SWBT harmless from any and all suits, claims, demands, losses,
damages, liabilities, fines, penalties, and expenses, of every kind and
character, made, brought, or sought against SWBT by any person or entity,
arising out of or in connection with the subject matter of this Agreement and
based on either:
(a) claims for taxes, municipal fees, franchise fees, right-to-use
fees, and other special charges assessed on SWBT due to the
placement or presence of Applicant's facilities on or within
SWBT's poles, ducts, conduits, or rights-of-way; or
(b) claims based on the violation by Applicant of any third party's
intellectual property rights, including but not limited to
claims for copyright infringement, patent infringement, or
unauthorized use or transmission of television or radio
broadcast programs or other program material.
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21.12 Applicant's General Indemnity Obligations to SWBT. This section
applies only in those situations not expressly covered by Sections 21.05-21.11
and does not apply to any suit, claim, demand, loss, damage, or expense
resulting from Applicant's enforcement of its rights against SWBT pursuant to
this Agreement or other provisions in the parties' interconnection agreement,
if any. Except as otherwise expressly provided in this Agreement to the
contrary, and subject to the exclusions set forth in Section 21.04, Applicant
shall indemnify, on request defend, and hold SWBT harmless from any and all
suits, claims, demands, losses, damages, liabilities, fines, penalties, and
expenses, of every kind and character, on account of or in connection with any
injury, loss, or damage to any person or property, or to the environment,
arising out of or in connection with Applicant's access to or use of SWBT's
poles, ducts, conduits, or rights-of-way, Applicant's performance of any acts
authorized under this Agreement, or the presence or activities of Applicant's
employees or other personnel acting on Applicant's behalf on, within, or in the
vicinity of SWBT's poles, ducts, conduits, or rights-of-way.
21.13 SWBT's General Indemnity Obligations to Applicant. This section
applies only in those situations not expressly covered by Sections 21.05-21.10
and does not apply to any suit, claim, demand, loss, damage, or expense
resulting from SWBT's enforcement of its rights against Applicant pursuant to
this Agreement or other provisions in the parties' interconnection agreement,
if any. Except as otherwise expressly provided in this Agreement to the
contrary, SWBT shall indemnify, on request defend, and hold Applicant harmless
from any and all suits, claims, demands, losses, damages, liabilities, fines,
penalties, and expenses, of every kind and character, on account of or in
connection with any injury, loss, or damage to any person or property, or to
the environment, arising out of or in connection with SWBT's access to or use
of SWBT's poles, ducts, conduits, or rights-of-way, SWBT's performance of any
acts authorized under this Agreement, or the presence or activities of SWBT's
employees or other personnel acting on SWBT's behalf on, within, or in the
vicinity of SWBT's poles, ducts, conduits, or rights-of-way.
21.14 No Rights' Claims, Causes of Action, or Remedies for the Benefit of
Third Parties. Nothing contained in this article is intended to create any
rights, claims, causes of action, or remedies for the benefit of any third
party.
21.15 Assertion of Limitation of Liability Defenses. Each party shall
diligently assert the limitation of liability provisions of any applicable
tariff or contract in any case involving injury, loss, or damage to any
customer of such party for which the other party is not exempt from
indemnification liabilities to the indemnified party under this Agreement.
21.16 Indemnity Liabilities Not Subject to Article 22 Limitations of
Liability. Indemnity liabilities under this article shall not be subject to
Article 22 limitations of liability.
21.17 Defense of Suits. Upon request by the indemnified party, the
indemnifying party shall defend any suit brought against the indemnified party
for any injury, loss, or
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damage subject to indemnification under this Agreement. The indemnified party
shall notify the indemnifying party promptly in writing of any written claims,
lawsuits, or demands for which the indemnifying party may be responsible under
this Agreement. The indemnified party shall cooperate in every reasonable way to
facilitate defense or settlement. The indemnifying party shall have the right to
control and conduct the defense and settlement of any action or claim subject to
consultation of the indemnified party. The indemnifying party shall not be
responsible for any settlement unless the indemnifying party approved such
settlement in advance and agrees to be bound by the settlement agreement.
ARTICLE 22: LIABILITIES AND LIMITATIONS OF LIABILITY
22.01 LIMITATIONS OF LIABILITY WITH RESPECT TO NEGLIGENT ACTS AND
OMISSIONS. THIS ARTICLE INCLUDES PROVISIONS LIMITING THE LIABILITIES OF EACH
PARTY ARISING OUT OF OR IN CONNECTION WITH CERTAIN NEGLIGENT ACTS AND OMISSIONS
OF SUCH PARTY.
22.02 LIMITATIONS OF LIABILITY IN GENERAL. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN SECTIONS 21.16 AND 22.05, NEITHER PARTY'S LIABILITY TO THE OTHER
PARTY FOR DAMAGES ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY NEGLIGENT ACT OR
OMISSION IN THE PERFORMANCE OF THIS AGREEMENT, WHETHER ARISING IN CONTRACT OR
TORT, SHALL EXCEED IN THE AGGREGATE FOR ANY CALENDAR YEAR THE GREATER OF
$250,000, OR THE TOTAL AMOUNT CHARGED BY SWBT TO APPLICANT UNDER THIS AGREEMENT
FOR THE CALENDAR YEARS WHEN THE ACTS OR OMISSIONS GIVING RISE TO LIABILITY
OCCURRED. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS LIMITING
EITHER PARTY'S LIABILITY FOR ACTS OR OMISSIONS CONSTITUTING WILLFUL OR
INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE BY SUCH PARTY.
22.03 EXCLUSION OF LIABILITY FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT,
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT
LIMITED TO LOSS OF ANTICIPATED PROFITS OR REVENUE OR OTHER ECONOMIC LOSS IN
CONNECTION WITH OR ARISING FROM ANY ACT OR FAILURE TO ACT PURSUANT TO THIS
AGREEMENT, EVEN IF THE OTHER PARTY HAS ADVISED SUCH PARTY OF THE POSSIBILITY OF
SUCH DAMAGES. THIS SECTION LIMITS EACH PARTY'S LIABILITY FOR INDIRECT,
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN
CONNECTION WITH NEGLIGENT (INCLUDING GROSSLY NEGLIGENT) ACTS OR OMISSIONS OF
SUCH PARTY BUT DOES NOT LIMIT EITHER PARTY'S LIABILITY FOR INTENTIONAL
MISCONDUCT.
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22.04 SWBT Not Liable to Applicant for Acts of Third Parties or Acts of
God. By affording Applicant access to poles, ducts, conduits, and rights-of-way
owned or controlled by SWBT, SWBT does not warrant, guarantee, or insure the
uninterrupted use of such facilities by Applicant. Except as specifically
provided in Section 22.05 of this Agreement, Applicant assumes all risks of
injury, loss, or damage (and the consequences of any such injury, loss, or
damage) to Applicant's facilities attached to SWBT's poles or placed in SWBT's
ducts, conduits, or rights-of-way, and SWBT shall not be liable to Applicant for
any damages to Applicant's facilities other than as provided in Section 22.05.
In no event shall SWBT be liable to Applicant under this Agreement for any
injury, loss, or damage resulting from the acts or omissions of (1) any joint
user or any person acting on a joint user's behalf, (2) any governmental body or
governmental employee, (3) any third-party property owner or persons acting on
behalf of such property owner, or (4) any licensee, invitee, trespasser, or
other person present at the site or in the vicinity of any SWBT pole, duct,
conduit, or right-of-way in any capacity other than as a SWBT employee or person
acting on SWBT's behalf. In no event shall SWBT be liable to Applicant under
this Agreement for injuries, losses, or damages resulting from acts of God
(including but not limited to storms, floods, fires, and earthquakes), wars,
civil disturbances, espionage or other criminal acts committed by persons or
entities not acting on SWBT's behalf, cable cuts by persons other than SWBT's
employees or persons acting on SWBT's behalf, or other causes beyond SWBT's
control which occur at sites subject to this Agreement.
22.05 Damage to Facilities. Except as otherwise specifically provided in
this section, neither party shall be liable to the other party for any injury,
loss, or damage (or for the direct or indirect consequences of any such injury,
loss, or damage) to such other party's facilities attached to SWBT's poles or
placed within or in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way.
(a) Each party (the "responsible party"), and persons acting on
behalf of the responsible party, shall exercise due care to
avoid damaging the facilities of the other party (the "injured
party"). In the event such damage occurs, the responsible party
or persons acting on behalf of the responsible party shall
immediately report such damages to the injured party, and the
injured party shall promptly make such arrangements as may be
necessary to restore service to its customers using the
facilities affected.
(b) The responsible party shall reimburse the injured party for the
actual costs incurred by the injured party for repair of
facilities damaged by the willful misconduct, grossly negligent
acts, grossly negligent omissions, and negligent acts (but not
negligent omissions other than grossly negligent omissions) of
employees of the responsible party.
(c) The responsible party shall reimburse the injured party for the
actual costs incurred by the injured party for repair of
facilities damaged by the
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willful misconduct, grossly negligent acts or omissions, and
negligent acts (but not negligent omissions other than grossly
negligent omissions) of independent contractors acting on the
responsible party's behalf; provided, however, that the injured
party shall be limited to recovery of those costs which cannot
be recovered from the independent contractor causing the
damage. The responsible party shall not be liable to the
injured party under this section until the injured party's
claims against the independent contractor causing the damage
have been adjudicated or settled and the amount of the injured
party's claim against the responsible party is determinable.
(d) NEITHER PARTY SHALL BE REQUIRED BY
THIS SECTION TO REIMBURSE THE OTHER PARTY FOR COSTS
INCURRED AS A RESULT OF NEGLIGENT OMISSIONS OTHER THAN
GROSSLY NEGLIGENT OMISSIONS COVERED BY SUBSECTIONS
(c)-(d) OF THIS SECTION.
(e) THIS SECTION LIMITS, BUT DOES NOT
EXCLUDE, THE RESPONSIBLE PARTY'S LIABILITY TO THE
INJURED PARTY FOR DAMAGES CAUSED BY NEGLIGENT (INCLUDING
GROSSLY NEGLIGENT) ACTS OF THE RESPONSIBLE PARTY AND
PERSONS ACTING ON THE RESPONSIBLE PARTY'S BEHALF.
22.06 No Limitations of Liability in Contravention of Federal or State
Law. Nothing contained in this article shall be construed as exempting either
party from any liability, or limiting such party's liability, in contravention
of federal law or in contravention of the laws of this State.
22.07 Claims Against Third Parties. Nothing contained in this article
shall be construed as requiring either party to forego any claims that such
party may have against third parties, including but not limited to contractors,
subcontractors, or persons (other than the other party's employees) acting on
the other party's behalf.
ARTICLE 23: INSURANCE
23.01 Insurance Required. Applicant shall comply with the insurance
requirements specified in this section.
(a) Unless Applicant has provided proof of self-insurance as
permitted in Section 23.02 below, Applicant shall obtain and
maintain in full force and effect, for so long as this Agreement
remains in effect, insurance policies specified in APPENDIX IV
of this Agreement. Each policy shall name SWBT as an additional
insured and shall include provisions requiring the insurer to
give SWBT notice of any lapse, cancellation, or
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termination of the policy or any modification to the policy
affecting SWBT's rights under the policy, including but not
limited to any decrease in coverage or increase in deductibles.
(b) Except as provided in this subsection, exclusions from coverage
or deductibles, other than those expressly permitted in APPENDIX
IV, must be approved in writing by SWBT. For authorized
contractors and other contractors performing work on, within, or
in the vicinity of SWBT's poles, ducts, conduits, and
rights-of-way on Applicant's behalf, exclusions from coverage or
deductibles, other than those expressly permitted in APPENDIX
IV, must be approved in writing by Applicant.
(c) Authorized contractors and other contractors performing work
on, within, or in the vicinity of SWBT's poles, ducts,
conduits, or rights-of-way on Applicant's behalf shall be
required to meet the same insurance requirements applicable to
contractors performing similar work on SWBT's behalf. Applicant
shall be responsible for securing compliance by its contractors
with this requirement and shall be liable to SWBT for any
damages resulting from its failure to do so.
(d) Self-insurance shall be permitted for persons and entities
(including but not limited to Applicant and authorized
contractors) meeting the self-insurance requirements set forth
in Section 23.02;
23.02 Proof of Insurance or Self-insurance. Proof of insurance or
self-insurance shall be made pursuant to the provisions of this section.
(a) Applicant shall submit to SWBT adequate proof (as determined by
SWBT) that the companies insuring Applicant are providing all
coverages required by this Agreement. Applicant's insurers shall
provide SWBT with certifications that required coverages will
not be cancelled, changed or materially altered (e.g., by
increasing deductibles or altering exclusions from coverage)
except after 30 days written notice to SWBT.
(b) SWBT will accept certified proof of a person or entity's
qualification as a self-insurer for Workers' Compensation and
Employers Liability, where self-insurance is permitted, upon
receipt of a current copy of a Certificate of Authority to
Self-insure issued by the Workers' Compensation Commission of
this State. SWBT will accept self-insurance by a person or
entity in lieu of other Commercial General Liability and
Automobile Liability Coverage if such person or entity warrants
that its net worth, as shown by its most recent audited
financial statement with no negative notes, is at least 10 times
the minimum liability limits set forth in APPENDIX IV and SWBT
is satisfied that
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such entity will be able to meet its liability obligations under
this Agreement.
(c) Applicant shall be responsible for
determining whether contractors and other persons
present on Applicant's behalf on, within, and in the
vicinity of SWBT's poles, ducts, conduits, and
rights-of-way meet the self-insurance requirements of
this subsection. Applicant may accept certified proof
of any such person's or entity's qualification as a
self-insurer for Workers' Compensation and Employers
Liability, where self-insurance is permitted, upon
receipt of a current copy of a Certificate of Authority
to Self-insure issued by the Workers' Compensation
Commission of this State. Applicant may accept proof of
self-insurance by a person or entity in lieu of other
Commercial General Liability and Automobile Liability
Coverage if such person or entity warrants that its net
worth, as shown by its most recent audited financial
statement with no negative notes, is at least 10 times
the minimum liability limits set forth in APPENDIX IV
and Applicant is satisfied that such entity will be able
to meet its liability obligations with respect to
activities performed on, within, and in the vicinity of
SWBT's poles, ducts, conduits, and rights-of-way.
23.03 Licensing Contingent on Proof of Insurance. All insurance required
in accordance with APPENDIX IV, or self-insurance as permitted in Section
23.02, must be in effect before SWBT will issue pole attachment or conduit
occupancy licenses under this Agreement and shall remain in force until all of
Applicant's facilities have been removed from SWBT's poles, ducts, conduits,
and rights-of-way.
23.04 Failure to Obtain or Maintain Coverage. Applicant's failure to
obtain and maintain the required levels and types of insurance coverage
required under this Agreement shall be grounds for termination of this
Agreement and licenses subject to this Agreement. If an insurance carrier
shall at any time notify Applicant or SWBT that any policy or policies of
insurance required under this Agreement will be cancelled or changed in any
manner which will result in Applicant's failure to meet the requirements of
this Agreement, SWBT may terminate this Agreement and all licenses subject to
this Agreement not less than 60 days after giving Applicant written notice of
its intention to do so, and such termination shall be effective on the
termination date specified in the notice unless Applicant has obtained (or made
arrangements satisfactory to SWBT to obtain) the required coverage from another
source. In the alternative, SWBT may, in its sole discretion, elect to take
such action as may be necessary to keep such policy in effect with the required
coverages.
ARTICLE 24: ASSIGNMENT OF RIGHTS
24.01 Assignment Permitted. Neither party may assign or otherwise
transfer its rights or obligations under this Agreement except as provided in
this section.
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(a) SWBT may assign its rights, delegate its benefits, and delegate
its duties and obligations under this Agreement, without
Applicant's consent, to any entity controlling, controlled by,
or under common control with SWBT or which acquires or succeeds
to ownership of substantially all of SWBT's assets.
(b) Applicant may assign its rights, delegate its benefits, and
delegate its duties and obligations under this Agreement,
without SWBT's consent, to: any telecommunications carrier or
cable system operator which (1) is entitled to access to SWBT's
poles, ducts, conduits, and rights-of-way under the Pole
Attachment Act and (2) controls, is controlled by, or is under
common control with Applicant or acquires and succeeds to
ownership of substantially all of Applicant's assets; provided,
however, that such assignment shall not be effective until
Applicant has given SWBT written notice of the assignment
pursuant to Section 24.03 and guaranteed the performance of
Applicant's assignee or successor. Applicant's assignee or
successor shall assume all outstanding obligations of Applicant
under this Agreement, including but not limited to all
liabilities and contingent liabilities of Applicant arising out
of or in connection with this Agreement.
(c) Applicant may, ancillary to a bona fide loan transaction
between Applicant and any lender, and without SWBT's
consent, grant security interests or make collateral
assignments in substantially all of Applicant's assets,
including Applicant's rights under this Agreement, subject to
the express terms of this Agreement. In the event Applicant's
lender, in the bona fide exercise of its rights as a secured
lender, forecloses on its security interest or arranges for a
third party to acquire Applicant's assets through public or
private sale or through an Agreement with Applicant,
Applicant's lender or the third party acquiring Applicant's
rights under this Agreement shall assume all outstanding
obligations of Applicant under the agreement and provide proof
satisfactory to SWBT that such lender or third party has
complied or will comply with all requirements established under
this Agreement. Notwithstanding any provisions of this
Agreement to the contrary, such foreclosure by Applicant's
lender or acquisition of assets by such third party shall not
constitute a breach of this Agreement and, upon such
foreclosure or acquisition, Applicant's lender or such third
party shall succeed to all rights and remedies of Applicant
under this Agreement (other than those rights and remedies, if
any, which have not been transferred and, if Applicant is a
debtor under the Federal Bankruptcy Code, those rights, if any,
which remain a part of the debtor's estate notwithstanding an
attempted foreclosure or transfer) and to all duties and
obligations of Applicant under the Agreement, including
liability to
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SWBT for any act, omission, default, or obligation that arose or
occurred under the Agreement prior to the date on which such
lender or third party succeeds to the rights of Applicant under
the Agreement, as applicable.
(1) In the event Applicant or Applicant's lender requests that
SWBT, in connection with a bona fide loan transaction
between Applicant and Applicant's lender, sign any
additional consents, or make other accommodations to
protect such lender's interest, Applicant or Applicant's
lender shall reimburse SWBT for all expenses incurred by
SWBT in connection with such requests and accommodations,
including but not limited to in-house or outside legal
expenses incurred by SWBT in processing the request.
(2) In the event Applicant or Applicant's lender desires that
SWBT provide notices to Applicant's lender or permit
Applicant's lender, in the event of a breach, to cure any
default or termination event if Applicant fails to do so,
Applicant shall notify SWBT's authorized agent, as
designated in Article 29 of this Agreement, that such
notices may be sent to Applicant's lender as well to
Applicant. Nothing contained in this subsection shall be
construed as imposing any duty on SWBT in favor of
Applicant's lender, and this section shall not be construed
to provide Applicant's lender or any other third parties
with any rights, claims, causes of action of any kind.
Applicant waives any and all claims or causes of action, of
every kind and character, past, present, or future, arising
out of or in connection with the giving of any notice to
Applicant's lender pursuant to this section or any failure
to give such notice.
(d) Either party may assign or transfer rights or obligations under
this Agreement on such terms and conditions as are mutually
acceptable to the other party and with such other party's prior
written consent, which consent may be withheld only for due
cause and justification.
(e) No assignment or transfer by Applicant of rights under this
Agreement, licenses subject to this Agreement, or authorizations
granted under this Agreement shall be effective until Applicant,
its successors, and assigns have complied with the provisions of
this article, secured SWBT's prior written consent to the
assignment or transfer, if necessary, and given SWBT notice of
the assignment or transfer pursuant to Section 24.03.
(f) Except as otherwise expressly provided in this article, neither
this Agreement, nor any licenses or authorizations subject to
this Agreement, shall inure to the benefit of Applicant's
successors or assigns without SWBT's prior written consent.
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24.02 Incorporations, Mergers, Acquisitions, and Other Changes in
Applicant's Legal Identity. When the legal identity or status of Applicant
changes, whether by incorporation, reincorporation, merger, acquisition, or
otherwise, such change shall be treated as an assignment subject to the
provisions of this article.
24.03 Notice of Assignment. Applicant shall provide SWBT with 60 days
advance notice in writing of any assignment.
24.04 Assignment Shall Not Relieve Applicant of Prior Obligations. Except
as otherwise expressly agreed by SWBT in writing, no assignment permitted by
SWBT under this Agreement shall relieve Applicant of any obligations arising
under or in connection with this Agreement, including but not limited to
indemnity obligations under Article 21 of this Agreement or the interconnection
agreement, if any.
24.05 Satisfaction of Existing Obligations and Assumption of Contingent
Liabilities. SWBT may condition its approval of any requested assignment or
transfer on the assignee's or successor's payment or satisfaction of all
outstanding obligations of Applicant under this Agreement and the assignee's or
successor's assumption of any liabilities, or contingent liabilities, of
Applicant arising out of or in connection with this Agreement.
24.06 Satisfaction of All Other Licensing Requirements. Applicant's
assignee or successor must, within 60 days following the assignment, provide
proof satisfactory to SWBT that such assignee or successor has complied or will
comply with all licensing requirements established under this Agreement,
including but not limited to requirements that such assignee or successor
verify, to the best of its information and belief, as provided in Section
17.03, that all facilities owned or used by such assignee or successor and
presently attached to SWBT's poles or placed within any portion of SWBT's
conduit system within this State have been disclosed to SWBT and are subject to
existing licenses and that such assignee or successor has complied with the
insurance requirements set forth in Article 23 of this Agreement.
24.07 Additional Post-Assignment Requirements. Applicant's assignee or
successor shall, within 60 days following the assignment:
(a) sign this Agreement as an assignee or successor expressly
agreeing to be bound by all provisions of this Agreement and
licenses subject to this Agreement;
(b) provide proof, satisfactory to SWBT, of such assignee's
assumption of the obligations of this Agreement; and
(c) pay a one-time contract administration fee, as provided in
APPENDIX I of this Agreement, if no Master Agreement for Access
to SWBT's Poles,
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Ducts, Conduits, or Rights-of-Way between SWBT and such assignee
is in effect for this State, or an administrative record-keeping
fee as provided in APPENDIX I of this Agreement, if there is a
Master Agreement in effect for this State.
24.08 Sublicenses Prohibited. Nothing contained in this Agreement shall
be construed as granting Applicant the right to sublicense any rights under
this Agreement or licenses subject to this Agreement to any third party.
Except as otherwise expressly permitted in this Agreement, Applicant shall not
allow third party to attach or place facilities to or in pole or conduit space
occupied by or assigned to Applicant or to utilize such space.
ARTICLE 25: TERMINATION OF AGREEMENT OR LICENSES;
REMEDIES FOR BREACHES
25.01 Termination Due to Non-Use of Facilities or Loss of Required
Authority. Applicant shall, by written notice to SWBT, terminate this
Agreement and all licenses subject to this Agreement if Applicant ceases to
have authority to do business or ceases to do business in this State, ceases to
have authority to provide or ceases to provide cable television services in
this State (if Applicant is cable television system having access to SWBT's
poles, ducts, conduits or rights-of-way solely to provide cable television
service), ceases to have authority to provide or ceases to provide
telecommunications services in this State (if Applicant is a telecommunications
carrier which does not also have authority to provide cable television service
in this State), or ceases to make active use of SWBT's poles, ducts, conduits,
and rights-of-way in this State. Applicant shall, by written notice to SWBT,
terminate individual licenses subject to this Agreement if (a) Applicant ceases
to utilize the pole attachment or conduit occupancy space subject to such
licenses or (b) Applicant's permission to use or have access to particular
poles, ducts, conduits, or rights-of-way has been revoked, denied, or
terminated for reasons of safety or any other lawful reason by any federal,
state, or local governmental authority or third-party property owner having
authority to revoke, deny, or terminate such use or access. Responsibility for
terminating this Agreement or individual licenses under the circumstances set
forth in this section shall be a contractual obligation imposed on Applicant,
and the failure by Applicant to terminate this Agreement or individual licenses
pursuant to this section shall be a material breach of this Agreement.
25.02 Limitation, Termination, or Refusal of Access for Certain Material
Breaches. Applicant's access to SWBT's poles, ducts, conduits, and
rights-of-way shall not materially interfere with or impair service over any
facilities of SWBT or any joint user, cause material damage to SWBT's plant or
the plant of any joint user, impair the privacy of communications carried over
the facilities of SWBT or any joint user, or create serious hazards
to the health or safety of any persons working on, within, or in the vicinity
of SWBT's poles, ducts, rights-of-way or to the public. Upon reasonable notice
and opportunity to cure, SWBT may limit, terminate or refuse access if
Applicant violates this provision; provided, however, that such limitation,
termination or refusal will be
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limited to Applicant's access to poles, ducts, conduits, and rights-of-way
located in the SWBT construction district in which the violation occurs, shall
be as narrowly limited in time and geographic scope as may be necessary to
enable Applicant to adopt suitable controls to prevent further violations, and
shall be subject to review, at Applicant's request, pursuant to the dispute
resolution procedures set forth in this Agreement (or, if applicable, the
parties' interconnection agreement) or, as permitted by law, before any court,
agency, or other tribunal having jurisdiction over the subject matter. In the
event Applicant invokes dispute resolution procedures or seeks review before a
court, agency, or other tribunal having jurisdiction of the subject matter, the
limitation, termination, or refusal of access may be stayed or suspended by
agreement of the parties or by order of the tribunal having jurisdiction over
the parties' dispute.
25.03 Notice and Opportunity to Cure Breach. In the event of any claimed
breach of this Agreement by either party, the aggrieved party may give written
notice of such claimed breach as provided in this section.
(a) The notice shall set forth in reasonable detail:
(1) the conduct or circumstances complained of, together with
the complaining party's legal basis for asserting that
a breach has occurred;
(2) the action believed necessary to cure the alleged breach;
and
(3) any other matter the complaining party desires to include
in the notice.
(b) Except as provided in Section 25.02 and subsection (c) of this
section, the complaining party shall not be entitled to pursue
any remedies available under this Agreement or relevant law
unless such notice is given and (1) the breaching party fails to
cure the breach within 30 days of such notice, if the breach is
one which can be cured within 30 days, or (2) the breaching
party fails to commence promptly and pursue diligently a cure of
the breach, if the required cure is such that more than 30 days
will be required to effect such cure; provided, however, that
nothing contained in this section shall preclude either party
from invoking the dispute resolution procedures set forth in
Article 30 of this Agreement, or any complaint or dispute
resolution procedures offered by the FCC or State Commission, at
any time.
(c) Nothing contained in this section shall preclude either party
from filing a complaint or bringing suit in any court, agency,
or other tribunal of competent jurisdiction to restrain or
enjoin any conduct of the other party which threatens the
complaining party with irreparable injury, loss
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or damage without first giving the notice otherwise required by
subsection (b).
25.04 Remedies for Breach. Subject to the provisions of this article and
the dispute resolution procedures of Article 30, either party may terminate
this Agreement in the event of a material breach by the other party or exercise
any other legal or equitable right which such party may have to enforce the
provisions of this Agreement. Except as otherwise specifically provided in
Section 30.07, in any action based on an alleged breach of this Agreement, the
prevailing party shall be entitled to recover all costs and expenses incurred
by such party, including but not limited to reasonable attorneys' fees.
ARTICLE 26: FAILURE TO ENFORCE
26.01 No Waiver. The failure by either party to take action to enforce
compliance with any of the terms or conditions of this Agreement, to give
notice of any breach, or to terminate this Agreement or any license or
authorization subject to this Agreement shall not constitute a waiver or
relinquishment of any term or condition of this Agreement, a waiver or
relinquishment of the right to give notice of breach, or waiver or
relinquishment of any right to terminate this Agreement. Notwithstanding any
such failure, all terms and conditions of this Agreement and all rights of
either party hereunder shall be and remain at all times in full force and
effect.
ARTICLE 27: EFFECTIVE DATE, TERM, AND ELECTIVE TERMINATION
27.01 Effective Date. This Agreement shall be effective as of the _____
day of ________________, 199_, or, if this Agreement has been entered into as
an appendix, attachment, or exhibit to an interconnection agreement between the
parties, the date of approval by the State Commission of the interconnection
agreement, whichever date first occurs.
27.02 Initial Term. Unless sooner terminated as herein provided, the
initial term of this Agreement shall run from the effective date until the end
of the calendar year which includes the effective date.
27.03 Automatic Renewal. Unless sooner terminated as herein provided,
this Agreement shall be automatically renewed for successive one-year terms
beginning on the first day of each calendar year after the effective date.
27.04 Elective Termination. Either party may terminate this Agreement by
giving the other party at least six months prior written notice as provided in
this section.
(a) Applicant may terminate this Agreement with or without cause.
(b) The parties acknowledge that the Pole
Attachment Act, 47 U.S.C. Section 224(e), as added by the
Telecommunications Act of 1996, expressly
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directs the FCC to promulgate new regulations governing charges
to telecommunications carriers for access to poles, ducts,
conduits, and rights-of-way and that such new regulations are to
take effect five years after the date of enactment of the
Telecommunications Act of 1996 (that is, February 8, 2001). The
parties further acknowledge that due to nondiscrimination
requirements, it is desirable that formal attachment agreements
establishing rates, terms, and conditions of access be revised
simultaneously, to the extent possible. Accordingly, the parties
agree that SWBT may terminate this Agreement only for cause
during the period beginning with the effective date of this
Agreement through February 8, 2001. Thereafter, SWBT may
terminate this Agreement with or without cause, subject to the
provisions of subsection (d) and Section 27.05 below.
(c) The notice of termination shall state
the effective date of termination, which date shall be
no earlier than the last to occur of the following
dates: the last day of the current term of this
Agreement or six months after the date the notice is
given.
(d) The elective termination of this Agreement by SWBT under this
section shall not require immediate removal of Applicant's
facilities from poles, ducts, conduits, and rights-of-way owned
or controlled by SWBT and shall be subject to the provisions of
Section 27.05 below; provided, however, that Applicant shall,
within 60 days after the effective date of the termination,
either initiate negotiations for continued access to SWBT's
poles, ducts, conduits, and rights-of-way or remove its
facilities in accordance with the provisions of Article 18 of
this Agreement.
27.05 Effect of Elective Termination. Elective termination of this
Agreement by Applicant, as permitted under Section 27.04 of this Agreement,
shall not affect Applicant's liabilities and obligations incurred under this
Agreement prior to the effective date of termination and shall not entitle
Applicant to the refund of any advance payment made to SWBT under this
Agreement. Elective termination of this Agreement by SWBT shall not affect
SWBT's obligations to afford access to SWBT's poles, ducts, conduits, and
rights-of-way owned or controlled by SWBT as required by the Pole Attachment
Act, the Telecommunications Act of 1996, and other applicable laws,
regulations, and commission orders.
ARTICLE 28: CONFIDENTIALITY OF INFORMATION
28.01 Information Provided by Applicant to SWBT. Except as otherwise
specifically provided in this Agreement, all company-specific and
customer-specific information submitted by Applicant to SWBT in connection with
this Agreement (including but not limited to information submitted in connection
with Applicant's applications for the assignment of pole attachment and
occupancy space and for pole
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attachment and conduit occupancy licenses) shall be deemed to be "confidential"
or "proprietary" information of Applicant and shall be subject to the terms set
forth in this article. Confidential or proprietary information specifically
includes information or knowledge related to Applicant's review of records
regarding a particular market area, or relating to assignment of space to
Applicant in a particular market area, and further includes knowledge or
information about the timing of Applicant's request for or review of records or
its inquiry about SWBT facilities. This article does not limit the use by SWBT
of aggregate information relating to the occupancy and use of SWBT's poles,
ducts, conduits, and rights-of-way by firms other than SWBT (that is,
information submitted by Applicant and aggregated by SWBT in a manner that does
not directly or indirectly identify Applicant).
28.02 Access Limited to Persons with a Need to Know. Confidential or
proprietary information provided by Applicant to SWBT in connection with this
Agreement shall not be disclosed to, shared with, or accessed by any person or
persons (including but not limited to personnel involved in sales, marketing,
competitive intelligence, competitive analysis, strategic planning, and similar
activities) other than those who have a need to know such information for the
limited purposes set forth in Sections 28.03-28.06.
28.03 Permitted Uses of Applicant's Confidential Information.
Notwithstanding the provisions of Sections 28.01 and 28.02 above, SWBT and
persons acting on SWBT's behalf may utilize Applicant's confidential or
proprietary information for the following purposes: (a) posting information,
as necessary, to SWBT's outside plant records; (b) placing, constructing,
installing, operating, utilizing, maintaining, monitoring, inspecting,
repairing, relocating, transferring, conveying, removing, or managing SWBT's
poles, ducts, conduits, and rights-of-way and any SWBT facilities located on,
within, or in the vicinity of such poles, ducts, conduits, and rights-of-way;
(c) performing SWBT's obligations under this Agreement and similar agreements
with third parties; (d) performing SWBT's general obligations to afford
nondiscriminatory access to telecommunications carriers and cable television
systems under the Pole Attachment Act; (e) determining which of SWBT's poles,
ducts, conduits, and rights-of-way are (or may in the future be) available for
SWBT's own use, and making planning, engineering, construction, and budgeting
decisions relating to SWBT's poles, ducts, conduits, and rights-of-way; (f)
preparing cost studies; (g) responding to regulatory requests for information;
(h) maintaining SWBT's financial accounting records; and (i) complying with
other legal requirements relating to poles, ducts, conduits, and rights-of-way.
28.04 Access by Third Parties. Information reflecting the assignment of
pole attachment and conduit occupancy space to Applicant may be made available
to personnel of third parties seeking access to SWBT's records under
provisions, and subject to protections, equivalent to those contained and
required by Section 7.03 of this Agreement.
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28.05 Defense of Claims. In the event of a dispute between SWBT and any
person or entity, including Applicant, concerning SWBT's performance of this
Agreement, satisfaction of obligations under similar agreements with third
parties, compliance with the Pole Attachment Act, compliance with the
Telecommunications Act of 1996, or compliance with other federal, state, or
local laws, regulations, commission orders, and the like, SWBT may utilize
confidential or proprietary information submitted by Applicant in connection
with this Agreement as may be reasonable or necessary to demonstrate compliance,
protect itself from allegations of wrongdoing, or comply with subpoenas, court
orders, or reasonable discovery requests; provided, however, that SWBT shall not
disclose Applicant's proprietary or confidential information without first, at
SWBT's option: (a) obtaining an agreed protective order or nondisclosure
agreement that preserves the confidential and proprietary nature of Applicant's
information; (b) seeking such a protective order as provided by law if no agreed
protective order or nondisclosure agreement can be obtained; or (c) providing
Applicant notice of the subpoena, demand, or order and an opportunity to take
affirmative steps of its own to protect such proprietary or confidential
information.
28.06 Response to Subpoenas, Court Orders, and Agency Orders. Nothing
contained in this article shall be construed as precluding SWBT from complying
with any subpoena, civil or criminal investigative demand, or other order
issued or entered by a court or agency of competent jurisdiction; provided,
however, that SWBT shall not disclose Applicant's proprietary or confidential
information without first, at SWBT's option: (a) obtaining an agreed
protective order or nondisclosure agreement that preserves the confidential and
proprietary nature of Applicant's information; (b) seeking such a protective
order as provided by law if no agreed protective order or nondisclosure
agreement can be obtained; or (c) providing Applicant notice of the subpoena,
demand, or order and an opportunity to take affirmative steps of its own to
protect such proprietary or confidential information.
28.07 Other Uses of Confidential Information. No other uses of
confidential information received from Applicant pursuant to this Agreement are
authorized or permitted without Applicant's express written consent.
ARTICLE 29: NOTICES
29.01 Notices to Applicant. Except as otherwise provided in APPENDIX VI
("Notices to Applicant"), all written notices required to be given to Applicant
shall be delivered or mailed to Applicant's duly authorized agent or attorney,
as designated in this section.
(a) Such notice may be delivered to Applicant's duly authorized
agent or attorney in person or by agent or courier receipted
delivery.
(b) Such notice may be mailed to Applicant's duly authorized agent
or attorney by registered or certified mail, return receipt
requested. When
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notice is given by mail, such notice shall be complete upon
deposit of the notice, enclosed in a postpaid, properly
addressed wrapper, in a post office or official depository under
the care and control of the United States Postal Service and
shall be deemed to have been given three days after the date of
deposit.
(c) Applicant may authorize delivery of
the notice by telephonic document transfer to the
Applicant's duly authorized agent or attorney. Notice
by telephonic document transfer after 5:00 p.m. local
time of the recipient shall be deemed given on the
following day.
(d) Notices to Applicant shall be sent to
the authorized agent or attorney designated below:
Name: ___________________________________________________
Title: __________________________________________________
Firm: ___________________________________________________
Address: ________________________________________________
City/State/Zip: _________________________________________
29.02 Notices to SWBT. Except as otherwise provided in APPENDIX VII
("Notices to SWBT"), all written notices required to be given to SWBT shall be
delivered or mailed to SWBT's duly authorized agent or attorney, as designated
in this section.
(a) Such notice may be delivered to
SWBT's duly authorized agent or attorney in person or by
agent or courier receipted delivery.
(b) Such notice may be mailed to SWBT's
duly authorized agent or attorney by registered or
certified mail, return receipt requested. When notice
is given by mail, such notice shall be complete upon
deposit of the notice, enclosed in a postpaid, properly
addressed wrapper, in a post office or official
depository under the care and control of the United
States Postal Service and shall be deemed to have been
given three days after the date of deposit.
(c) SWBT may authorize delivery of the
notice by telephonic document transfer to SWBT's duly
authorized agent or attorney. Notice by telephonic
document transfer after 5:00 p.m. local time of the
recipient shall be deemed given on the following day.
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(d) On the effective date of this Agreement, and until
further notice to Applicant, SWBT's duly authorized
agent shall be the Utility Liaison Supervisor ("ULS")
designated in APPENDIX VIII.
29.03 Changes in Notice Requirements. Either party may, from time to
time, change notice addressees and addresses by giving written notice of such
change to the other party. Such notice shall state, at a minimum, the name,
title, firm, and full address of the new addressee.
ARTICLE 30: DISPUTE RESOLUTION
30.01 Purpose. The provisions of this article are intended to minimize
litigation between the parties with respect to disputes arising in connection
with this Agreement and shall be construed accordingly. Any dispute between
the parties arising under this Agreement may be submitted by either party for
resolution under this article.
30.02 Exclusive Remedy for Monetary Claims under $25,000. Except for
actions seeking injunctive relief related to the purposes of this Agreement or
suits to compel compliance with the dispute resolution processes set forth in
this article, the parties agree to use the dispute resolution processes set
forth in this Agreement as their sole remedy with respect to any monetary claim
of $25,000 or less which arises out of or in connection with this Agreement.
30.03 Prerequisite to Litigation. The provisions of this article shall
also apply to all disputes, without regard to the amount in controversy, in
which Applicant contests charges billed by SWBT to Applicant under the terms of
this Agreement. No suit, except for actions seeking injunctive relief related
to the purposes of this Agreement or suits to compel compliance with the
dispute resolution processes set forth in this article, shall be filed by
either party against the other with respect to such contested charges until the
parties have engaged in good faith negotiations as provided in Section 30.04,
and, if the parties agree, in mediation under Section 30.05.
30.04 Good Faith Negotiation. Good faith negotiation as provided in this
section shall be the first step in the dispute resolution process.
(a) With respect to any dispute subject
to the provisions of this article, either party may
initiate negotiation proceedings by writing a certified
or registered letter to the other party setting forth
the particulars of the dispute, the terms of the
Agreement that are involved, and a suggested resolution
of the problem.
(b) The recipient of the letter shall
respond within 21 days to the proposed solution. The
recipient shall either agree to the proposed solution or
explain its disagreement.
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(c) If the correspondence does not resolve the dispute, each
party, at the request of either party, will appoint a
knowledgeable, responsible representative to meet and
negotiate in good faith to resolve the dispute. The
location, form, frequency, duration, and conclusion of
these discussions shall be left to the discretion of the
representatives. Upon agreement, the representatives
may utilize other alternative dispute resolution
procedures such as mediation to assist in the
negotiations.
(d) Discussions and correspondence among the representatives
as provided by this section are for purposes of
settlement, are exempt from discovery and production, and
shall not be admissible in arbitration, judicial,
regulatory, or other proceedings in any forum.
30.05 Mediation. If the parties agree to mediation, the mediation may be
conducted as provided in this section or in such other manner as may be
mutually agreeable to the parties.
(a) If agreed to by the parties, the dispute shall be
referred to the nearest office of the American
Arbitration Association, or such other mediator as may be
selected by agreement of the parties, for mediation, that
is, an informal, non-binding conference or conferences
between the parties in which a mediator will seek to
guide the parties to a resolution of the dispute.
(b) If the dispute is referred to the American Arbitration
Association, the parties are free to select any mutually
acceptable panel member from the list of mediators at the
American Arbitration Association. If the parties cannot
agree or have no particular choice of a mediator and
simply request that the American Arbitration Association
assign a mediator to the dispute, then a list and resumes
of available mediators, numbering one more than there are
parties, will be sent to the parties, each of whom may
strike one name leaving the remaining name as the
mediator. If more than one name remains, the designated
mediator shall be selected by the Administrator of the
American Arbitration Association from the remaining
names.
(c) Mediation sessions shall be private.
(d) All records, reports or other
documents considered by the mediator shall be
confidential.
(e) The parties agree that the mediator
shall not be compelled to divulge confidential materials
or to testify about the mediation in arbitration,
regulatory, judicial, or other proceedings in any forum.
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(f) The parties agree to maintain the confidentiality of the
mediation and shall not rely on, or introduce as
evidence in any arbitration, judicial, or other
proceeding:
(1) views expressed or
suggestions made by the other party with respect
to a possible settlement of the dispute;
(2) admissions made by the
other party during the mediation proceedings;
(3) proposals made or views
expressed by the mediator; or
(4) the fact that the other
party had or had not indicated willingness to
accept a proposal for settlement made by the
mediator.
(g) Subsections (e) and (f) of this section shall apply to
anything said, done or occurring in the course of the
mediation, including any private caucus or
discussions between the mediator and any party or counsel
before or after the joint mediation session. There shall
be no stenographic record of the mediation process,
except to memorialize a settlement record.
(h) The mediation process shall be considered settlement
negotiation for the purpose of all state and
federal rules protecting disclosures made during such
conferences from later discovery or use in evidence. All
conduct, statements, promises, offers, views, and
opinions, oral or written, made during the mediation by
any party or a party's agent, employee, or attorney are
confidential and, where appropriate, are to be considered
work product and privileged. Such conduct, statements,
promises, offers, views, and opinions shall not be
subject to discovery or admissible for any purpose,
including impeachment, in any litigation or other
proceeding involving the parties; provided, however, that
evidence otherwise subject to discovery or admissible is
not excluded from discovery or admission in evidence
simply as a result of its having been used in connection
with this settlement process.
30.06 Arbitration. If negotiations and mediations do not resolve the
dispute within 90 days after the initiation of dispute resolution proceedings
as provided in subsection (a) of Section 30.04 of this Agreement, the dispute
shall be submitted to binding arbitration by a single arbitrator pursuant to
the Commercial Arbitration Rules of the American Arbitration Association if the
dispute involves any monetary claim of $25,000 or less which arises out of or
in connection with this Agreement. The parties may voluntarily elect to
arbitrate disputes in which the amount in controversy exceeds $25,000, but they
shall not be required by this Agreement to do so.
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(a) Either party may demand such arbitration in accordance
with the procedures set out in the Commercial
Arbitration Rules.
(b) Discovery shall be controlled by the
arbitrator and shall be permitted to the extent set out
in this subsection.
(1) Each party may submit in writing to any other
party, and such other party shall so respond, to
a maximum of any combination of 35 of the
following: interrogatories, document production
requests, and requests for admissions. The
interrogatories, document production requests,
and requests for admissions shall not have
subparts.
(2) Additional discovery may be permitted upon mutual
agreement of the parties or upon order of the
arbitrator on a showing of good cause.
(c) The arbitrator shall control the scheduling so as to
process the matter expeditiously. The times set
forth in this subsection shall apply unless extended
upon mutual agreement of the parties or by the
arbitrator on a showing of good cause.
(1) The arbitration hearing shall commence within 60
days of the demand for arbitration and shall
be held, in the absence of agreement by the
parties to a different venue, in St. Louis,
Missouri.
(2) The parties shall submit written briefs five days
before the hearing.
(3) The arbitrator shall rule on the dispute by
issuing a written opinion within 30 days after
the close of hearings.
(4) The arbitrator shall have no authority to order
punitive or consequential damages.
(5) Judgment upon the award rendered by the arbitrator
may be entered in any court of competent
jurisdiction.
30.07 Costs. Except as specifically provided in this section, each party
shall bear its own costs of all dispute resolution procedures under this
article.
(a) A party seeking discovery shall
reimburse the responding party for the costs incurred by
the responding party in producing documents.
(b) The parties shall equally split the
fees of the arbitration and the arbitrator.
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30.08 No Abridgment of Rights under the Communications Act of 1934 or the
Pole Attachment Act. Nothing contained in this article shall abridge the
rights of either party to seek relief from the FCC with respect to any dispute
subject to the jurisdiction of the FCC under the Communications Act of 1934 or
the Pole Attachment Act, or from the State Commission with respect to any
dispute subject to its jurisdiction, except that the parties may not seek
relief from the FCC or the State Commission with respect to any dispute that
has already been resolved by mediation under Section 30.05 or by binding
arbitration under Section 30.06.
ARTICLE 31: ACCESS TO APPLICANT'S
POLES, DUCTS, CONDUITS, AND RIGHTS-OF-WAY
31.01 No Reciprocal Access to Applicant's Facilities. This Agreement does
not include provisions for reciprocal access by SWBT to Applicant's poles,
ducts, conduits, and rights-of-way.
ARTICLE 32: GENERAL PROVISIONS
32.01 Entire Agreement. This Agreement, together with the interconnection
agreement, if any, to which this Agreement is an appendix,attachment, or
exhibit, sets forth the entire understanding and agreement of the parties.
32.02 Prior Agreements Superseded. This Agreement supersedes all prior
agreements and understandings, whether written or oral, between Applicant and
SWBT relating to the placement and maintenance of Applicant's facilities on and
within SWBT's poles, ducts, and conduits within this State.
32.03 Amendments Shall Be in Writing. Except as otherwise specifically
provided to the contrary by other provisions of this Agreement, the terms and
conditions of this Agreement shall not be amended, changed or altered except in
writing and with approval by authorized representatives of both parties.
32.04 Survival of Obligations. Any liabilities or obligations of either
party for acts or omissions prior to the termination of this Agreement, any
obligations of either party under provisions of this Agreement relating to
confidential and proprietary information, indemnification, limitations of
liability, and any other provisions of this Agreement which, by their terms,
are contemplated to survive (or be performed after) termination of this
Agreement, will survive the termination of this Agreement.
32.05 Multiple Counterparts. This Agreement may be executed in multiple
counterparts.
32.06 Effect on Licenses Issued Under Prior Agreements. All currently
effective pole attachment and conduit occupancy licenses granted to Applicant
shall, on the
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effective date of this Agreement, be subject to the rates, terms,
conditions, and procedures set forth in this Agreement.
32.07 Force Majeure. Except as otherwise specifically provided in this
Agreement, neither party will be liable for any delay or failure in performance
of any part of this Agreement caused by a Force Majeure condition, including
acts of the United States of America or any state, territory, or political
subdivision thereof, acts of God or a public enemy, fires, floods, disputes,
freight embargoes, earthquakes, volcanic actions, wars, civil disturbances,
cable cuts, or other causes beyond the reasonable control of the party claiming
excusable delay or other failure to perform; provided, however, that Force
Majeure will not include acts of any governmental authority relating to
environmental, health, or safety conditions at work locations.
If any Force Majeure condition occurs, the party whose performance fails or is
delayed because of such Force Majeure condition will give prompt notice to the
other party, and, upon cessation of such Force Majeure condition, will give
like notice and commence performance hereunder as promptly as reasonably
practicable.
32.08 Severability. If any article, section, subsection, or other
provision or portion of this Agreement is or becomes invalid under any
applicable statute or rule of law, and such invalidity does not materially
alter the essence of this Agreement as to either party, the invalidity of such
provision shall not render this entire Agreement unenforceable and this
Agreement shall be administered as if it did not contain the invalid provision.
32.09 Choice of Law. Except to the extent that federal law controls any
aspect of this Agreement, the validity of this Agreement, the construction and
enforcement of its terms, and the interpretation of the rights and duties of
the parties will be governed by the laws of this State, applied without regard
to the provisions of this State's laws relating to conflicts-of-laws.
32.10 Changes in the Law. Because the primary purpose of this Agreement
is to provide access to poles, ducts, conduits, and rights-of-way in accordance
with the Pole Attachment Act, as amended by the Telecommunications Act of 1996
and subsequent amendments, the parties contemplate that changes in this
Agreement may from time to time be necessary or desirable to conform to changes
in the Pole Attachment Act as that Act is amended, interpreted, and applied.
This Agreement is based in large part on regulatory decisions by the FCC, which
has jurisdiction over the rates, terms, and conditions of access to poles,
ducts, conduits, and rights-of-way (except to the extent that such jurisdiction
has been pre-empted by individual states) and decisions by the State
Commission. More specifically, this Agreement is based in large part on the
FCC's First Interconnection Order in CC Docket No. 96-98, on FCC rules
announced with the First Interconnection Order, and on Arbitration Orders by
the State Commission.
[ ] Applicant desires to have access to
SWBT's poles, ducts, conduits, and rights-of-way on
terms that are not less favorable than those obtained by
firms participating in interconnection arbitration
PAGE 106
280
proceedings before the State Commission. Applicant also
desires to have access to SWBT's poles, ducts, conduits,
and rights-of-way to the full extent permitted under the
FCC's First Interconnection Order in CC Docket No. 96-98.
SWBT is entering into this Agreement for the purpose of
providing nondiscriminatory access in compliance with the
Pole Attachment Act and regulatory decisions thereunder,
including decisions by the State Commission in
interconnection arbitration proceedings in which
Applicant is not a party. Each party is entering into
this Agreement based on current interpretations of the
law by the FCC and State Commission. In the event of any
changes in the Pole Attachment Act, changes in applicable
FCC or State Commission rulings, or judicial
determinations that such rulings are erroneous or
invalid, each party shall, at the request of the other,
engage in good faith negotiations to supplement, amend or
replace any provisions of this Agreement affected by such
changes or determinations and to conform this Agreement
to changes in the underlying laws on which the Agreement
is based.
[ ] This Agreement has been entered into as a result of
private negotiation between the parties and arbitration
by the State Commission, acting pursuant to the
Telecommunications Act of 1996. If the actions of any
legislative bodies, courts, or regulatory agencies of
competent jurisdiction invalidate, modify, or stay the
enforcement of laws, rules, regulations, or commission
orders that were the basis for a provision of this
Agreement (including but not limited to any provision of
this Agreement required by any arbitration award approved
by the State Commission), the affected provision shall be
invalidated, modified, or stayed as required by action of
the legislative body, court, or regulatory agency. In the
event of such a change in the law, each party shall
expend diligent efforts to arrive at an agreement
respecting the modifications to the Agreement required by
the law or requested in good faith by the other party. If
negotiations fail, disputes between the parties
concerning interpretation of the actions required or
provisions affected by such governmental actions shall be
resolved pursuant to the dispute resolution process
provided for in the interconnection agreement or this
Agreement; provided, however, that this section shall not
be construed as precluding either party from seeking
appropriate relief from the FCC in connection with the
parties' rights and obligations under the Pole Attachment
Act. In the event of any material change in the law, each
party agrees to enter into good faith negotiations to
conform this Agreement to the changes in the law.
PAGE 107
281
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
SOUTHWESTERN XXXX TELEPHONE COMPANY
By:
-------------------------------------------------------------------------
Signature of SWBT's Authorized Officer/Employee
-------------------------------------------------------------------------
Name of SWBT's Authorized Officer/Employee (Printed or Typed)
-------------------------------------------------------------------------
Position/Title of SWBT's Authorized Officer/Employee
-------------------------------------------------------------------------
Date
-------------------------------------------------------------------------
City and State of Execution by SWBT
------------------------------------------------------------------------------
Applicant's Name (Printed or Typed)
By:
-------------------------------------------------------------------------
Signature of Applicant's Authorized Officer/Employee
-------------------------------------------------------------------------
Name of Authorized Officer/Employee (Printed or Typed)
-------------------------------------------------------------------------
Position/Title of Authorized Officer/Employee
-------------------------------------------------------------------------
Date
-------------------------------------------------------------------------
City and State of Execution by Applicant
PAGE 108
282
Agreement No. ___________
APPENDIX I
SCHEDULE OF RATES, FEES AND CHARGES (OKLAHOMA) -- PAGE 1 OF 4
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached and sets forth
the rates, fees and charges to be paid by Applicant to SWBT pursuant to the
Master Agreement and licenses subject to the Master Agreement. The rates, fees,
and charges set forth in this Appendix shall be subject to all applicable laws,
rules, regulations, and commission orders as provided in Section 19.01 of the
Master Agreement and shall be subject to revision as provided in Section 19.12
of the Master Agreement.
A) Pole Attachment Fees
1) General
a) For billing purposes, pole attachments shall be considered i) to
have commenced on the first to occur of the following dates:
the date of assignment (or provisional assignment) of pole
attachment space, the date a license for such pole attachment is
issued, or the date of actual attachment and ii) to have ended on
the last to occur of the following dates: the date Applicant's
assignment lapses or is relinquished, the date of actual removal
of the attached facilities from SWBT's pole, or the date of
termination of Applicant's license.
b) Fees shall be payable semiannually in advance on the first days of
January and July and shall be prorated on a daily basis as
provided in Section 19.04. Fees for pole attachments shall be
based on the number of pole attachments as of the date of
billing. If Applicant occupies more than one usable space on a
pole, separate attachment fees shall apply to each space occupied.
For billing purposes, a single pole attachment includes the point
of attachment and all facilities located in the usable space on
the pole in the space assigned to Applicant (typically six inches
above and six inches below the point of attachment), together with
routine ancillary apparatus such as anchors, anchor/guy strands,
drive rings, J-hooks, dead-end clamps, and other apparatus which
does not interfere with the ability of SWBT to occupy or assign
usable space on the pole other than the usable space licensed to
Applicant. Fees for pole space assignments and unauthorized pole
attachments shall be billed in the same manner as if a license had
been issued.
2) Fees (1997 Rates)
Semiannual Pole Attachment Fees Annual Semiannual
------------------------------- ------ ----------
Per pole attachment (cable service only) $ 1.55 $0.775
Per pole attachment (telecommunications carriers) $ 1.55 $0.775
Per pole attachment (other) $ N/A $ N/A
283
APPENDIX I
SCHEDULE OF FEES AND CHARGES (OKLAHOMA) -- PAGE 2 OF 4
B) Conduit Occupancy Fees
1) General
a) For billing purposes, conduit occupancy shall be considered to
have i) begun on the first to occur of the following dates: the
date of assignment (or provisional assignment) of conduit
occupancy space, the date a license for such conduit occupancy is
issued, or the date of actual occupancy; and ii) ended on the last
to occur of the following dates: the date Applicant's assignment
lapses or is relinquished, the date of actual removal of the
attached facilities from SWBT's conduit, or the date of
termination of Applicant's license. Occupancy ends when
facilities have been removed from SWBT's conduit system and
required post-removal procedures (e.g., plugging ducts) have been
completed. Fees for conduit space assignments and unauthorized
conduit occupancy shall be billed in the same manner as if a
license had been issued.
b) Fees shall be payable semiannually in advance on the first days of
January and July.
2) Fees (1997 Rates)
Semiannual Per Foot Conduit Occupancy Fees Annual Semiannual
------------------------------------------ ------ ----------
Full duct/duct foot (cable service only) $ 0.39/ft $ 0.195/ft
Full duct/duct foot (telecommunications carriers) $ 0.39/ft $ 0.195/ft
Full duct/duct foot (other) $ N/A $ N/A
Half duct/duct foot (cable service only)* $ 0.195/ft $ 0.0975/ft
Half duct/duct foot(telecommunications carriers)* $ 0.195/ft $ 0.0975/ft
Half duct/duct foot(other)* $ N/A $ N/A
1/3 duct/duct foot (telecommunications carriers)** $ 0.13/ft $ 0.065/ft
1/3 duct/duct foot(cable service only)** $ 0.13/ft $ 0.065/ft
1/3 duct/duct foot(other)** $ N/A $ N/A
*See c)-d) below for partial duct rate.
**See f) below for inner duct rate
a) Facility footage shall be measured i) from the center of one
manhole to the center of an adjacent manhole if the facility runs
between two manholes, ii) from the center of a manhole to the end
of a duct not terminated in a manhole, or iii) from the center of
a manhole to the property line if the duct is connected at the
property line to a duct owned and controlled by a third-party
property owner.
b) Semiannual full duct conduit occupancy fees will apply to the
first facility placed in a previously unoccupied duct except as
provided in c)-d) below.
284
APPENDIX I
SCHEDULE OF FEES AND CHARGES (OKLAHOMA) -- PAGE 3 OF 4
c) If two or more facilities occupy a duct that has not been
subdivided by inner duct, a semiannual half duct conduit
occupancy fee will be charged for each facility placed in the
duct.
d) A semiannual half duct occupancy fee will apply to the first
facility placed by Applicant in a previously unoccupied duct
that has not been subdivided by inner duct if and only if the
presence of Applicant's facility does not render the other half
of the duct unusable by others.
e) As ordered by the State Commission, when Applicant's facilities
are installed within inner duct, a single semiannual one-third
duct conduit occupancy fee will apply to each inner duct
occupied.
C) Application Fees. No application fees shall be charged for the submission
of access applications or provisional space assignments.
D) Pre-license Survey Work. Charges for pre-license survey work are not set
on a fixed fee basis and will be determined on a case-by-case. If
pre-license survey work is performed by SWBT's contractors, Applicant
shall reimburse SWBT for the actual out-of-pocket costs incurred by SWBT
for such work. If pre-license survey work is performed by SWBT employees,
pre-license survey charges shall be computed by multiplying the applicable
hourly rates times the number of hours reasonably spent by SWBT's
employees on pre-license survey work.
E) Facilities Modification, Capacity Expansion, and Make-ready Work. Charges
for facilities modification, capacity expansion, and make-ready work are
not set on a fixed fee basis and will be determined in a case-by-case
basis. In all cases, except as otherwise specifically provided to the
contrary in the Master Agreement, such charges shall include the costs of
materials required to perform the work. If such work is performed by SWBT's
contractors, Applicant shall reimburse SWBT for the actual out-of-pocket
costs incurred by SWBT for such work. If such work is performed by SWBT
employees, charges for such work shall be computed by multiplying the
applicable hourly rates times the number of hours reasonably spent by
SWBT's employees on the work. No later than 45 days after receipt by SWBT
of Applicant's completed application, or within such other period as may be
mutually agreed upon in writing by the parties, SWBT will furnish Applicant
an estimate of the charges for make-ready work. SWBT shall not be required
to perform the make-ready work until Applicant has prepaid the estimated
make-ready charges in full. After make-ready work has been completed by
SWBT, Applicant shall pay SWBT the difference between the estimated
make-ready charges and the actual charges, if the actual charges are
greater than the estimate, or SWBT shall refund to Applicant the difference
between the estimated make-ready charges and the actual charges, if the
actual charges are less than the estimate.
285
APPENDIX I
SCHEDULE OF FEES AND CHARGES (OKLAHOMA) -- PAGE 4 OF 4
F) Construction Inspectors. Subject to all applicable commission orders,
where work is being performed on Applicant's behalf in SWBT's manholes or
other portions of SWBT's conduit system, Applicant shall pay SWBT's full
costs attributable to having a construction inspector present; provided,
however, that SWBT shall not charge Applicant for more than one such
construction inspector per site at any given time. If the construction
inspector is a SWBT contractor, Applicant shall reimburse SWBT for the
actual out-of-pocket costs incurred by SWBT in connection with the
presence of such inspector. If the construction inspector is a SWBT
employee, charges for the construction inspector shall be computed by
multiplying the applicable hourly rate times the number of hours
reasonably spent by the employee as a construction inspector in connection
with the project.
G) Other Work Performed Pursuant to the Master Agreement. For all other
work performed by SWBT's contractors pursuant to this Agreement, including
but not limited to work performed in opening manholes and participating in
work operations at Applicant's request, Applicant shall reimburse SWBT for
the actual out-of-pocket costs incurred by SWBT in connection with the
performance of such work. For all other work performed by SWBT's
employees pursuant to this Agreement, including but not limited to work
performed in opening manholes, providing access to and copies of records,
and participating in work operations at Applicant's request, SWBT's
charges shall be computed by multiplying the applicable hourly rates times
the number of hours reasonably spent by SWBT's employees on such work.
H) Contract Administration Fee and Administrative Record-keeping Fees. A one
time contract administration fee of $250.00 shall be due and payable at the
time of the execution of the Master Agreement. SWBT may charge
administrative record-keeping fees not exceeding $125.00 in connection with
records and billing changes resulting from the sale, consolidation, or
other transfer of Applicant's business or facilities, name changes, and the
like. SWBT shall provide Applicant, on Applicant's request, a statement of
the basis for the fees.
I) Other Administrative and Ancillary Fees. No other administrative or
ancillary fees are charged by SWBT on a fixed fee basis.
J) Hourly Rates. Except as otherwise provided by any applicable law, rule,
regulation, or commission order, hourly rates charged for SWBT employees
shall be such employees' fully loaded hourly rates.
K) Payment Date. For fees and charges other than charges for make-ready work,
each xxxx or invoice submitted by SWBT to Applicant shall state the date
that payment is due, which date shall be not less than 60 days after the
date of the xxxx or invoice. For make-ready work, the payment due date
shall be not less than 30 days after the date of the xxxx or invoice.
Interest on past due charges shall accrue as provided in Section 19.11(a)
of the Master Agreement.
286
Agreement No. _____________
APPENDIX II
IDENTIFICATION OF APPLICANT (OKLAHOMA)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Applicant's legal name is:
------------------------------------------------------
-------------------------------------------------------------------------------.
Applicant's principal place of business is located in the State of
-------------.
Applicant does business under the following assumed names:
----------------------
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------.
Applicant is:
[ ] a corporation organized under the laws of the State of
, charter no. ;
----------------------- ------------------
[ ] a partnership organized under the laws of the State of
; or
---------------------
[ ] another entity, as follows:
-------------------------------------------
---------------------------------------------------------------------.
Applicant represents that Applicant is:
[ ] (1) a cable system (as defined in 47 U.S.C. Sections 153(37) and
522(7)) seeking a pole attachment or conduit occupancy license
solely to provide cable service (as defined in 47 U.S.C. Section
522(6);
[ ] (2) a telecommunications carrier, as defined in 47 U.S.C.
Section 153(49), as modified by 47 U.S.C. Section 224, or
[ ] (3) a person or entity which is neither (1) nor (2) above,
as follows:
------------------------------------------------------------------
287
Agreement No. _____
APPENDIX III
ADMINISTRATIVE FORMS AND NOTICES (OKLAHOMA)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached and contains
administrative forms referred to in the Master Agreement or used in connection
with the provision of access to SWBT's poles, ducts, conduits, and
rights-of-way. The forms are forms presently in use and have not been conformed
to the Master Agreement. The forms may be further revised by SWBT to conform to
the Master Agreement and revised from time to time to reflect changes in the
applicable law, changes in the Master Agreement, and changes in the procedures
through which access to poles, ducts, conduits, and rights-of-way is afforded by
SWBT to Applicant and others.
SW-9433: Pole Attachments
SW-9434: Access Application and Make-Ready Authorization
SW-9435: Conduit Occupancy
SW-9436A: Notification of Surrender or Modification of Pole Attachment License
by Licensee
SW-9436B: Notification of Surrender or Modification of Conduit Occupancy
License by Applicant
SW-9436C: Notification of Unauthorized Attachments by Applicant
288
[SOUTHWESTERN XXXX TELEPHONE LOGO]
Retention Period: Active, Plus Five Years Pole Attachments PAGE ___ OF __
FIRM'S NAME:_____________________________ [ ] Provisional, Records Based Assignment
AGREEMENT No:____________________________ [ ] Pre-Occupancy Survey TYPE:_________
APPLICATION No:__________________________
(CATV, Telecom, Other)
----------------------------------------------------------------------------------------------------------------------------------
Item Record Pole Ownership Street Proposed Guy Make Ready Make Ready Pole Mntd
----------------------------------------------------------------------------------------------------------------------------------
# # # SWBT or Address Attachment Rq'd Work Description Apparatus
----------------------------------------------------------------------------------------------------------------------------------
Power Height Y or N Y or N Height
----------------------------------------------------------------------------------------------------------------------------------
1
----------------------------------------------------------------------------------------------------------------------------------
2
----------------------------------------------------------------------------------------------------------------------------------
3
----------------------------------------------------------------------------------------------------------------------------------
4
----------------------------------------------------------------------------------------------------------------------------------
5
----------------------------------------------------------------------------------------------------------------------------------
6
----------------------------------------------------------------------------------------------------------------------------------
7
----------------------------------------------------------------------------------------------------------------------------------
8
----------------------------------------------------------------------------------------------------------------------------------
9
----------------------------------------------------------------------------------------------------------------------------------
10
----------------------------------------------------------------------------------------------------------------------------------
11
----------------------------------------------------------------------------------------------------------------------------------
12
----------------------------------------------------------------------------------------------------------------------------------
13
----------------------------------------------------------------------------------------------------------------------------------
14
----------------------------------------------------------------------------------------------------------------------------------
15
----------------------------------------------------------------------------------------------------------------------------------
16
----------------------------------------------------------------------------------------------------------------------------------
17
----------------------------------------------------------------------------------------------------------------------------------
18
----------------------------------------------------------------------------------------------------------------------------------
19
----------------------------------------------------------------------------------------------------------------------------------
20
----------------------------------------------------------------------------------------------------------------------------------
TOTAL
----------------------------------------------------------------------------------------------------------------------------------
Number of Cables_____________________ Other Notes:______________________________________
----------------------------------------------------------------------------------------------------------------------------------
Weight/per ft. and Size/O.D. ____________ ________________________________________________
----------------------------------------------------------------------------------------------------------------------------------
Number and Types of Strands____________ ________________________________________________
----------------------------------------------------------------------------------------------------------------------------------
Date:_____________
Time:_____________
SIGNED:____________________________________ SIGNED:____________________________
SWBT Representative Applicant's Representative
[ ] Official File Copy, If Checked in Red
289
SW9433
POLE ATTACHMENTS
FORM INSTRUCTIONS
From SW9433 may be used for the following two purposes, Provisional, Records
Based Assignment or as the Pre-Occupancy Survey. The applicant may complete the
SW9433 and submit this to SWBT while reviewing the records and make a
Provisional, Records Based Assignment. The applicant will also use this form
when making the Pre-Occupancy Survey as a reference sheet of information
required for acquiring pole attachment space
REQUIRED INFORMATION FOR PROVISIONAL, RECORDS BASED ASSIGNMENT
FIRM'S NAME: Name of firm requesting pole attachment space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by applicant in sequential ascending order.
[ ] Provisional, Records Based Assignment: Applicable when an applicant elects
to a Provisional, Records Based Assignment. The form will be signed and dated at
the bottom by both the applicant and the SWBT representative. A copy will be
provided to the applicant and the original will be maintained by SWBT.
Type: The applicant states that they are a CATV, a Telecommunications Carrier
or a firm other than the aforementioned two.
Record #: The SWBT paper record or the SWBT mechanized record number.
Pole #: Applicant will supply the pole number either from the SWBT Records or
from a field visit.
Ownership: Applicant will determine and post the ownership of the pole by
marking S for SWBT or P for Power Company based on SWBT's records.
Street Address: Applicant will provide street address or geographical
reference point of the pole.
Proposed Attachment Height: Applicant will provide the proposed attachment
height in feet and inches on the pole.
Guy Rq'd: Not required for Provisional, Records Based assignment.
Make Ready Work: Not required for Provisional, Records Based assignment.
Make Ready Description: Not required for Provisional, Records Based
assignment.
Pole Mntd Apparatus Height: Not required for Provisional, Records Based
assignment.
Weight/per ft. and Size/O.D.: Applicant will provide.
Number and Types of Strands: Applicant will provide the number and types of
strands.
Other Notes: Any other notes relevant to the request including any infrequent
construction techniques.
Date: The date the Provisional, Records Based Assignment was made.
Time: The time the Provisional, Records Based Assignment was made.
Signed (Applicant's Representative): Applicant's Representative signs that the
Provisional, Records Based Assignment was made.
Signed (SWBT Representative): SWBT's Representative signs that the
Provisional, Records Based Assignment was made.
290
REQUIRED INFORMATION FOR PRE-OCCUPANCY SURVEY
FIRM'S NAME: Name of firm requesting pole attachment space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No.: Will be provided by SWBT.
[ ] Pre-Occupancy Survey: This would be checked when this form is being used as
a Pre-Occupancy Survey. The form would be completed in its entirety and signed
by the applicant and submitted to SWBT for review in obtaining pole attachment
space.
Type: The applicant states that they are a CATV, a Telecommunications Carrier
or a firm other than the aforementioned two.
Record #: The SWBT paper record or mechanized record number.
Pole #: Applicant will supply the pole number either from the SWBT Records or
from a field visit.
Ownership: Applicant will determine and post the ownership of the pole by
marking S for SWBT or P for Power Company.
Street Address: Applicant will provide street address or geographical
reference point of the pole.
Proposed Attachment Height: Applicant will provide the proposed attachment
height in feet and inches on the pole.
Guy Rq'd: Applicant will state if a guy is required. (Yes or No).
Make Ready Work: Applicant will state if make ready work is required. (Yes or
No)
Make Ready Description: Applicant will give description of make ready work
required.
Pole Mntd Apparatus Height: Applicant will state any proposed apparatus that
would be placed on the pole. (Terminal, etc.)
Number of Cables: Applicant will state the number of cables that will be
placed on the pole.
Weight/per ft. and Size/O.D.: Applicant will provide.
Number and Types of Strands: Applicant will provide the number and types of
strands.
Other Notes: Any other notes relevant to the request including any infrequent
construction techniques.
Date: The date the Pre-Occupancy Survey was submitted to SWBT.
Time: The time the Pre-Occupancy Survey was submitted to SWBT.
Signed (Applicant's Representative): Applicant's Representative signs when
Pre-Occupancy Survey was submitted to SWBT.
Signed (SWBT Representative): SWBT's Representative signs when Pre-Occupancy
Survey was submitted to SWBT.
291
[SOUTHWESTERN XXXX TELEPHONE LOGO]
Access Application and Make-Ready
Authorization
Retention Period, Active, plus 5 years (Request for Access to Poles, Ducts, Conduit)
Name of Applicant______________________________________________________________
Agreement No.__________________________________________________________________
Application No.________________________________________________________________
Provisional Assignment
As specified in the attached documents, and in accordance with the terms and
conditions of the Master Agreement between SWBT and Applicant, application is
hereby made for a provisional assignment of space in anticipation of a
nonexclusive license of communication facilities to access the quantity of SWBT
facilities indicated below:
______ SWBT poles _____ Feet SWBT Whole Duct _______ Feet SWBT Innerduct
Applicant desires immediate assignment of space and acknowledges that the
effective date is ____________________. Applicant agrees to provide an
application for assignment/access/occupancy of the assigned space within 30
days from the date of the assignment, or forfeit the assignment.
Expiration Date:___________________
Assignment/Access/Occupancy
As specified in the attached documents, and in accordance with the terms and
conditions of the Master Agreement between SWBT and Applicant, application is
hereby made for occupancy of space through a nonexclusive license of
communication facilities to access the quantity of SWBT facilities indicated
below:
______ SWBT poles ______ Feet SWBT Whole Duct _______ Feet SWBT Innerduct
Applicant authorizes SWBT to perform the required pre-licensing survey including
any field inspections required to evaluate capacity, safety, reliability, and
engineering standards; and to determine the cost, if any of required
modifications or make-ready work.
Expiration Date:_____________________
Applicant's Estimated Construction Start Date:________________________
Applicant's Estimated Construction Completion Date:___________________
Authorized by Applicant:________________________________________
Signature Title
Date:____________________________
Make-Ready Work
Estimated Costs Hours Rate Total
Constr. Labor --- x $ $
------ --------
Material XXX x $ XXX $
--- ------ --------
Engr. Design x $ $
--- ------ --------
Total $
--------
Estimated SWBT Completion Date
[ ] No Make-Ready Work Required. [ ] No Make-Ready Work Required under 8.03(a)
[ ] Make-Ready Work will be completed by applicant's authorized contractor.
[ ] I authorize SWBT to complete the required make-ready work. Payments due
upon 50% completion and 100% completion. Costs will be based upon actual
costs incurred by SWBT. (This may vary depending on state)
___________________________________________________ Date:_____________________________
Applicant's Signature Title
License No._____________________________ Authorized by SWBT:_________________________________
Date:_________________________ Signature Title
[ ] Official File Copy, If Checked In Red
292
SW-9434
ACCESS APPLICATION and MAKE-READY AUTHORIZATION
FORM INSTRUCTIONS
5/5/97
Form SW-9434 is used to request access to poles, ducts, and conduit; to transmit
notice of Provisional Assignments; and to provide other information required in
the access process.
REQUIRED INFORMATION
NAME OF APPLICANT. Name of firm requesting on poles or in conduit.
AGREEMENT NO. Number obtained from the Master Agreement Number.
APPLICATION NO. Will be provided by applicant in sequential ascending order.
PROVISIONAL ASSIGNMENT BOX DATA
"ATTACHED DOCUMENTS" Copies of the Assignment Of Space Logs showing the
applicant's entries for the requested space or completed Forms SW-9433 or
SW-9435 if appropriate. Assignment is not official until the required data
is entered in the Assignment Of Space Log.
___ SWBT POLES The number of poles for which space is requested.
___ FEET SWBT WHOLE DUCT The accumulated Center-to-Center measurements
for the Whole Duct to be occupied. To be used ONLY FOR CABLES TOO
LARGE IN DIAMETER (Typically copper conductor cables.) to fit in
SWBT standard innerduct
___ FEET SWBT INNERDUCT The accumulated Center-to-Center measurements
for the innerduct to be occupied.
Effective date is date entered in Assignment Of Space Log
PROVISIONAL ASSIGNMENT EXPIRATION DATE: 30 calendar days from the date
entered in the Assignment of Space Log (i.e., Date Application must
be submitted to hold the assignment of space.)
ASSIGNMENT/ACCESS/OCCUPANCY BOX DATA
"ATTACHED DOCUMENTS" Completed Forms SW-9433 and/or SW-9435.
___ SWBT POLES The number of poles to be accessed.
___ FEET SWBT WHOLE DUCT The accumulated Center-to-Center measurements
for the Whole Duct to be occupied. To be used ONLY FOR CABLES TOO
LARGE IN DIAMETER (Typically copper conductor cables.) to fit in
SWBT standard innerduct
___ FEET SWBT INNERDUCT The accumulated Center-to-Center measurements
for the innerduct to be occupied.
EFFECTIVE DATE IS date entered in Assignment Of Space Log
ASSIGNMENT EXPIRATION DATE: 12 Months from the date entered in Assignment
Of Space Log
(Date facilities must be placed to avoid forfeiture of assigned
space.)
PAGE 1
293
SW-9434
ACCESS APPLICATION AND MAKE-READY AUTHORIZATION
FORM INSTRUCTIONS
5/5/97
APPLICANT'S ESTIMATED CONSTRUCTION START DATE: Current "best estimate" of the
date project construction will begin. "ASAP" is not an acceptable date.
APPLICANT'S ESTIMATED CONSTRUCTION COMPLETION DATE: Current "best estimate" of
the date placements and splicing will be completed. "ASAP" is not an
acceptable date.
AUTHORIZED BY APPLICANT: Signature and Title of the Applicant's representative
authorizing the request for access and payment (if any) of related SWBT
engineering charges in connection with such access.
DATE: Date of authorization by Applicant's representative.
MAKE-READY WORK BOX DATA
ESTIMATED COSTS: SWBT will calculate data for Construction Labor,
Material, and Engineering Design hours and summarize the TOTAL estimated
SWBT Make-Ready Costs.
ESTIMATED SWBT COMPLETION DATE SWBT Engineering will provide the estimated
completion date of SWBT Make-Ready Work based upon current scheduling
loads.
[ ] NO MAKE-READY WORK REQUIRED. Applicant should check this box if it has
determined that fully code/specifications-compliant access can be granted
without any work or modifications by SWBT or other parties. If inner duct
must be placed, box should not be checked.
[ ] MAKE-READY WORK will be completed by Applicant's authorized
contractor. If Applicant plans to utilize a mutually approved authorized
contractor to perform all the Make-Ready work, this box only should be
checked.
[ ] I AUTHORIZE SWBT TO COMPLETE THE REQUIRED MAKE READY WORK.... If
Applicant wants SWBT to perform all the Make-Ready Work, this box only
should be checked.
IF SOME MAKE-READY WORK MUST BE DONE BY SWBT AND SOME WILL BE DONE BY THE
APPLICANT'S AUTHORIZED COMPACTOR, THE LAST TWO BOXES SHOULD BE CHECKED. A
DETAILED DESCRIPTION OF THE WORK TO BE DONE BY SWBT MUST BE INCLUDED.
APPLICANT'S SIGNATURE, TITLE AND DATE:
If the No Make-Ready Work Required box is checked by Applicant,
Applicant's Signature confirms the accuracy of the current Applicant
construction schedule. If the Not Make-Ready Work Required under
8.03(a) box is checked, Applicant confirms conditions under 8.03
Immediate Occupancy apply.
If Make-Ready Work will be completed by Applicant's Authorized
contractor is checked, Applicant's signature concurs with any
changes in proposed Make-Ready work identified by SWBT and confirms
the accuracy of the current schedule.
If SWBT will perform any Make-Ready Work, Applicant's signature
authorizes payment to SWBT of actual cost to perform the required
make-ready work.
LICENSE NO. ______ AUTHORIZED BY SWBT: The SWBT State ULS will authorize, date,
and issue the License No. on the SW-9434 which becomes the Applicant's License
For Access.
PAGE 2
294
[SOUTHWESTERN XXXX TELEPHONE LOGO]
Retention Period: Active, Plus Five Years Conduit Occupancy PAGE ___ OF ____
FIRM'S NAME:_____________________________ [ ] Provisional, Records Based Assignment
AGREEMENT No.:___________________________ [ ] Pre-Occupancy Survey TYPE:__________
APPLICATION No.:__________________________
(CATV, Telecom, Other)
Item Oper. Record Manhole Street Distance To Proposed Make Ready Make Ready
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# # # # Address Next Manhole Duct or Work Description
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(Ctr to Ctr) Innerduct Y or N
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TOTAL
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Number of Cables_____________________ Splice Information Manhole # __________________________, Details
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Size of Cable (O.D. Inches)______________ Splice Information Manhole #___________________________, Details
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Slack Loop Info. Manhole..#_____________________________, Details
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Slack Loop Info. Manhole..#_____________________________, Details
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Date:_____________
Time:_____________
SIGNED:____________________________________ SIGNED:____________________________________
SWBT Representative Applicant's Representative
[ ] Official File Copy, If Checked in Red
295
SW9435
CONDUIT OCCUPANCY
FORM INSTRUCTIONS
From SW9435 may be used for the following two purposes, Provisional,
Records Based Assignment or as the Pre-Occupancy Survey. The applicant may
complete the SW-9435 and submit this to SWBT while reviewing the records
and make a Provisional, Records Based Assignment. The applicant will also
use this form when making the Pre-Occupancy Survey as a reference sheet of
information required for acquiring duct and/or inner duct space.
REQUIRED INFORMATION FOR PROVISIONAL, RECORDS BASED ASSIGNMENT
FIRM'S NAME: Name of firm requesting conduit space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No. Will be provided by applicant in sequential ascending
order.
[ ] Provisional, Records Based Assignment: Applicable when an applicant
would make a Provisional, Records Based Assignment. The form will be signed
and dated at the bottom by both the applicant and the SWBT representative.
A copy will be provided to the applicant and the original will be
maintained by SWBT.
Type: Applicant indicates that they are a CATV, a Telecommunications
Carrier or a firm other than the aforementioned two.
Record #: This would refer to either the SWBT paper record or the SWBT
mechanized record number.
Manhole #: Applicant will supply each manhole number.
Street Address: Applicant will provide street address of the manhole, it
applicable.
Proposed Duct or Inner duct: Applicant will state the number of ducts
and/or inner ducts.
Make Ready Work: Not required for Provisional, Records Based assignment.
Make Ready Description: Not required for Provisional, Records Based
assignment.
Number of Cables: Applicant will enter the number of cables.
Size of Cable (O.D. Inches): Applicant will enter size of cable.
Splice Information Manhole #: Not required for Provisional, Records Based
assignment.
Details: Not required for Provisional, Records Based assignment.
Slack Loop Info. Manhole #: Not required for Provisional, Records Based
assignment.
Details: Not required for Provisional, Records Based assignment.
Date: The date the Provisional, Records Based Assignment was made.
Time: The time the Provisional, Records Based Assignment was made.
Signed (Applicant's Representative): Applicant's Representative signs that
the Provisional, Records Based Assignment was made.
Signed (SWBT Representative): SWBT's Representative signs that the
Provisional, Records Based Assignment was made.
296
REQUIRED INFORMATION FOR PRE-OCCUPANCY SURVEY
FIRM'S NAME: Name of firm requesting conduit space.
AGREEMENT No.: Number obtained from the Master Agreement Number.
APPLICATION No. Will be provided by applicant in sequential ascending
order.
[ ] Pre-Occupancy Survey: Applicable when this form is used as a
Pre-Occupancy Survey. The form would be completed in its entirety by the
applicant and submitted to SWBT for review in obtaining conduit space.
Type: Applicant indicates that they are a CATV, a Telecommunications
Carrier or a firm other than the aforementioned two.
Oper. #: Applicant will provide the operation number when required. The
same operation number may very well be referenced on an attached map.
Record #: This would refer to either the SWBT paper record or the SWBT
mechanized record number.
Manhole #: Applicant will supply each manhole number.
Street Address: Applicant will provide street address of the manhole, it
applicable.
Distance to Manhole: Applicant will state the distance from manhole to
manhole in fact.
Proposed Duct or Inner duct: Applicant will state the number of ducts
and/or inner ducts.
Make Ready Work: Applicant will state if make ready work is required. (Yes
or No)
Make Ready Description: Applicant will give description of make ready work
required.
Number of Cables: Applicant will indicate the number of cables.
Size of Cable (O.D. Inches): Applicant will enter size of cable.
Splice Information Manhole #: Applicant will enter any relevant splice
information.
Details: Applicant will provide any relevant details regarding splice
information.
Slack Loop Info. Manhole #: Applicant will provide.
Details: Applicant will provide any relevant Slack Loop Information.
Date: The date the Pre-Occupancy Survey was submitted to SWBT.
Time: The time the Pre-Occupancy Survey was submitted to SWBT.
Signed (Applicant's Representative): Applicant's Representative signs when
Pre-Occupancy Survey was submitted to SWBT.
Signed (SWBT Representative): SWBT's Representative signs when
Pre-Occupancy Survey was submitted to SWBT.
297
[SOUTHWESTERN XXXX TELEPHONE LOGO]
NOTIFICATION OF SURRENDER OR MODIFICATION
OF POLE ATTACHMENT LICENSE BY LICENSEE
Page ____ of _____
Agreement Number________________
________________________________
(Licensee)
________________________________
(Address)
________________________________
SOUTHWESTERN XXXX TELEPHONE COMPANY:
In accordance with the terms and conditions of the License Agreement between
us, dated _________, 19__, notice is hereby given that the licenses covering
attachments to the following poles and/or anchors and/or utilization of
anchor/xxx xxxxxx is surrendered (or modified as indicated in Licensee's prior
notification to Licensor, dated ___________________, 19___) effective
_____________________.
DATE FAC.
ANCHOR A/GS RMVD. OR
POLE NO. (ASSOC. POLE NO.) LIC. NO. & DATE SURRENDEER OR MODIFICATION MODIFIED
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Date Notification Received _____________________
Date Modification Accepted _____________________ __________________________
By _____________________________________________ Name of Licensee
Discontinued:
Poles _____________________ By______________________________
Anchors____________________
Anchor/Guy Strands_________ Title___________________________
298
[SOUTHWESTERN XXXX TELEPHONE LOGO]
NOTIFICATION OF SURRENDER OR MODIFICATION
OF CONDUIT OCCUPANCY LICENSE BY APPLICANT
Page ____ of _____
License Agreement # ___________________ ________________________________
(Applicant)
________________________________
(Address)
________________________________
SOUTHWESTERN XXXX TELEPHONE COMPANY:
In accordance with the terms and conditions of the Licensing Agreement between
us, dated ____________, 19__, notice is hereby given that the licenses covering
occupancy of the following conduit are surrendered (or modified as indicated in
Applicant's prior notification to SWBT, dated ___________________, 19___,)
effective ____________.
DATE
FAC. RMVD.
CONDUIT LOCATION LIC. NO. & DATE SURRENDER OR MODIFICATION OR MODIFIED
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T Date Notification Received _____________________ ______________________________
B Date Modification Accepted _____________________ (Applicant)
W By _____________________________________________ By________________________________
S Discontinued:___________________________________ (Name of Authorized Agent)
Total duct footage_________________ Title_____________________________
(Title of Authorized Agent)
299
Agreement No. ________________
APPENDIX IV
INSURANCE REQUIREMENTS (OKLAHOMA) -- PAGE 1 OF 4
This Appendix IV is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
1) Premises. As used in this Appendix, the term "premises" refers to any
site located on, within, or in the vicinity of SWBT's poles, ducts, conduits, or
rights-of-way and any location where Applicant or any person acting on
Applicant's behalf may be physically present while traveling to or departing
from any such site.
2) Requirements Applicable to Applicant and All Persons and Entities Acting
on Applicant's Behalf. Applicant shall maintain, at all times during the term of
this Master Agreement, all insurance and coverages set forth below. Such
insurance and coverages shall not only cover Applicant but all contractors,
subcontractors, and other persons or entities acting on Applicant's behalf at
the premises described in 1) above. Applicant should require that all
contractors, subcontractors, and other persons or entities acting on Applicant's
behalf at premises described in 1) above obtain the same insurance and
coverages.
3) Workers' Compensation Insurance. Applicant shall maintain, at all times
during the term of this Agreement, Workers' Compensation Insurance and
Employer's Liability Insurance with minimum limits of $100,000 for bodily
injury-each accident, $100,000 for bodily injury by disease-each employee, and
$500,000 for bodily injury by disease-policy limits, for all employees
performing work or otherwise present on the premises described in 1) above. Such
insurance must comply with the Workers' Compensation laws of this State and
shall provide coverage, at a minimum, for all benefits required by such Worker's
Compensation laws. Applicant shall require any contractor, subcontractor, or
other person or entity acting on Applicant's behalf to provide Workers'
Compensation Insurance and Employer's Liability Insurance for their respective
employees unless such employees are covered by the protection afforded by
Applicant.
4) General Liability Insurance. To protect SWBT and any joint user from any
liability for bodily injury or property damage, Applicant shall maintain, at all
times during the term of this Agreement, General Liability insurance
satisfactory to SWBT. SWBT shall be added as an additional insured in the
standard policy or an endorsement thereto. Applicant shall also require any
contractor, subcontractor, or other person or entity acting on Applicant's
behalf to provide General Liability coverage with the same limits and with SWBT
added as an additional insured unless such contractor, subcontractor, or other
person or entity is covered by the General Liability protection afforded by
Applicant.
a) The following coverages must be included in (and may not be excluded
from) the policy or policies obtained to satisfy the General
Liability insurance requirements of Applicant and any contractor,
subcontractor, or other person or entity acting on Applicant's
behalf. The coverages may be provided by the standard policy or
endorsements thereto. Exclusion endorsements deleting these coverages
will not be accepted.
300
[SOUTHWESTERN XXXX TELEPHONE LOGO]
NOTIFICATION OF UNAUTHORIZED
ATTACHMENTS BY APPLICANT
Applicant Name_______________________
In accordance with the terms and conditions of the License Agreement between us,
dated ____________, 19__, notice is hereby given that the license covering
attachments to the following is unauthorized (as indicated in Applicant's prior
agreement to SWBT, dated ______________________, 19___,) effective ____________.
SOUTHWESTERN XXXX TELEPHONE
By:__________________________________
Title:_______________________________
POLE NO. LOCATION DATE FAC.
OR (ASSOC. POLE NO.) RMVD. OR
CONDUIT # MANHOLES involved LIC. NO. & DATE UNAUTHORIZED ATTACHMENT MODIFIED
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______________________________________
SKETCH OF Name of Applicant
UNAUTHORIZED
ATTACHMENTS
ATTACHED [ ] By ___________________________________
Date Notification
Sent____________________ Title ________________________________
301
APPENDIX IV
INSURANCE REQUIREMENTS (OKLAHOMA) -- PAGE 2 OF 4
1) Personal Injury and Advertising Injury coverage.
2) Premises/Operations coverage, including also
coverage for any newly acquired ownership or
controlled premises or operations.
3) Independent Contractors coverage to provide
protection for Applicant's contractors,
subcontractors, and other persons or entities
acting on Applicant's behalf.
4) Explosion, Collapse, and Underground Hazard (XCU)
coverage.
5) Completed Operations coverage providing for bodily
injury and property damage liabilities which may
occur once the operations have been completed or
abandoned.
6) Contractual Liability coverage to provide financial
responsibility for the Applicant to meet its
indemnification obligations.
7) Broad Form Property Damage (BFPD) coverage for
damage to property in the care or custody of
Applicant and damage to work performed by or on
behalf of the Applicant.
b) Minimum policy limits shall be as follows:
General Aggregate Limit: $1,000,000.
Sublimit for all bodily injury, property damages, or
medical expenses incurred in any one occurrence:
$1,000,000.
Sublimit for personal injury and advertising: $1,000,000.
Products/Operations Aggregate Limit: $1,000,000.
Each occurrence sublimit for Products/Operations:
$1,000,000.
c) No coverage shall be deleted from the standard policy
without notification of individual exclusions being
attached for review and acceptance.
d) Policy language or endorsements adding SWBT as an
additional insured shall not include exclusions or
exceptions which defeat the purpose of protecting SWBT
from any liability for bodily injury or property damage
arising out of Applicant's operations.
302
APPENDIX IV
INSURANCE REQUIREMENTS (OKLAHOMA) -- PAGE 3 OF 4
5) Automobile Liability insurance. The parties contemplate that Applicant
and personnel acting on Applicant's behalf will utilize automobiles, trucks, and
other motor vehicles on public and private property, including public rights of
way, in the vicinity of SWBT's poles, ducts, conduits, and rights-of-way.
Accordingly, Applicant shall maintain, at all times during the term of this
Agreement, Automobile Liability insurance with minimum limits of $1,000,000
combined single limits per occurrence for bodily injury and property damage
which may arise out of the operation or use of motor vehicles of any type.
Coverage shall extend to "any auto" -- that is, coverage shall be extended to
all owned, non-owned, and hired vehicles used by Applicant or by any person or
entity acting on Applicant's behalf in connection with any work performed, or to
be performed, on, within, or in the vicinity of SWBT's poles, ducts, conduits,
or rights-of-way.
6) Layering of General Liability and Automobile Liability coverages.
Applicant's insurance may be written via a primary policy with either an excess
or umbrella form over the primary policy. If coverage is written in this manner,
the total of the combined policy limits must meet or exceed the minimum limits
specified in this Agreement.
7) Deductibles. No deductibles shall be allowed without the express written
consent of SWBT.
8) Claims Made Policies. Claims Made Policies will not be accepted.
9) Proof of Insurance. Certificates of Insurance stating the types of
insurance and policy limits provided the insured, or other proof of insurance
satisfactory to SWBT, must be received by SWBT prior to the issuance of any
licenses pursuant to this Agreement and before Applicant or any person acting on
Applicant's behalf performs any work on the premises described in 1) above.
a) Certificates of Insurance using the insurance industry standard
XXXXX form are preferred.
b) Certificates provided with respect to General Liability policies
and certificates provided with respect to Automobile Liability
policies shall indicate SWBT as an Additional Insured.
c) Deductibles, if permitted, shall be listed on the Certificate of
Insurance.
d) The cancellation clause on the certificate of insurance shall be
amended to read as follows:
"SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED OR
MATERIALLY CHANGED BEFORE THE
303
APPENDIX IV
INSURANCE REQUIREMENTS (OKLAHOMA) -- PAGE 4 OF 4
EXPIRATION DATE, THE ISSUING COMPANY WILL MAIL 30 DAYS
WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
LEFT."
A certificate which does not include the phrase "or materially
changed" does not meet SWBT's requirements. A certificate reciting
that the issuing company will "endeavor to" mail 30 days written
notice to the certificate holder does not meet SWBT's requirements.
The language "but failure to mail such notice shall impose no
obligation or liability of any kind upon the company, its agents,
or representatives" or similar language must be deleted from the
certificate.
e) The certificate holder shall be:
Southwestern Xxxx Telephone Company
0000 X. 00xx, Xxxxx 0
Xxxxx, Xxxxxxxx 00000
ATTENTION: Utility Liaison Supervisor
f) Failure to object to any coverage described in a certificate shall
not constitute written permission from SWBT to any variance from or
alteration of any requirement set forth in this Appendix and shall
not be construed as a waiver by SWBT of any rights under this
Agreement.
10) Rating of Insurers. SWBT requires that companies affording insurance
coverage have a B+VII or better rating, as rated in the current A.M. Best Key
Rating Guide for Property and Casualty Insurance Companies.
11) Self-insurance. If authorized in the Master Agreement, self-insurance
shall be allowed in lieu of the above requirements upon Applicant's submission
of proof that it has met the self-insurance requirements stated in the Master
Agreement.
304
Agreement No. _____________
APPENDIX V
NONDISCLOSURE AGREEMENT (OKLAHOMA) -- PAGE 1 OF 4
Nondisclosure Agreement (SWBT Pole, Duct, Conduit, and Right-of-Way)
This Nondisclosure Agreement, effective as of the ____ day of ___________
19_, has been entered into by and between Southwestern Xxxx Telephone Company
("SWBT"), a Missouri corporation, and the undersigned person or firm
("Recipient") as a condition of access to certain records and information
maintained by SWBT. The parties stipulate and agree as follows:
1) SWBT maintains records and information, including but not limited to
outside plant engineering and construction records, which relate to poles,
ducts, conduits, and rights-of-way which SWBT owns or controls. SWBT represents
that such records and information are not made generally available for
inspection or copying by the public and include business, economic, and
engineering information (including but not limited to plans, designs, maps,
diagrams, cable counts and cable-specific information, circuit records, and
other competitively sensitive information) which SWBT intends to keep secret and
which has economic value by virtue of not being generally known to or readily
ascertainable by the public, including SWBT's competitors.
2) SWBT has agreed to make certain of its records and information relating
to poles, ducts, conduits, and rights-of-way available to cable television
systems and telecommunications carriers who are presently entitled under federal
law to have access to the poles, ducts, conduits, and rights-of-way owned or
controlled by SWBT.
3) Recipient represents that Recipient is a cable television system or
telecommunications carrier entitled under federal law to access to poles, ducts,
conduits, and rights-of-way owned or controlled by SWBT, or, if an individual,
that he or she is acting on behalf of_________________________________, which is
such a cable television system or telecommunications carrier. Recipient further
represents that Recipient is seeking access to SWBT's records and information
relating to poles, ducts, conduits, and rights-of-way for the limited purpose of
enabling engineering and construction personnel employed by or acting on behalf
of such cable television system or telecommunications carrier to make
engineering and construction decisions necessary to utilize SWBT's poles, ducts,
conduits, and rights-of-way.
4) SWBT agrees that permitted uses of records and information concerning
SWBT's poles, ducts, conduits, and rights-of-way are (a) determining which
poles, ducts, conduits, and rights-of-way owned or controlled by SWBT are
available for use by such cable television systems or telecommunications
carriers as permitted by federal law, (b) designing, engineering, constructing,
installing, maintaining, and removing equipment which is to be attached to or
placed within such poles, ducts, conduits, and rights-of-way, and (c) contesting
decisions, if any, by SWBT not to provide access to such poles, ducts, conduits,
and rights-of-
305
APPENDIX V
NONDISCLOSURE AGREEMENT (OKLAHOMA) -- PAGE 2 OF 4
way as requested. No other uses of such records or information are authorized or
permitted under this Agreement.
5) Recipient agrees that Recipient will not use, or permit any other person
or entity to use or have access to SWBT's records and information relating to
poles, ducts, conduits, or rights-of-way or information for any purpose other
than the limited purposes stated in 4) above and that such records and
information shall not be disclosed or shared with any person or persons other
than those who have a need to know such information for such limited purposes.
Recipient specifically agrees that such records and information shall not be
used or accessed by any person involved in sales, marketing, competitive
intelligence, competitive analysis, strategic planning, and similar activities.
Recipient further agrees that Recipient shall not furnish copies of such records
or disclose information contained in such records to any person or entity which
has not executed and delivered to SWBT a counterpart of this Agreement prior to
receipt of such copies or information.
6) Recipient agrees that Recipient will not without SWBT's express written
authorization copy, duplicate, sketch, draw, photograph, download, photocopy,
scan, replicate, transmit, deliver, send, mail, communicate, or convey any of
SWBT's records relating to poles, ducts, conduits, or rights-of-way. Recipient
further agrees that Recipient will not conceal, alter, or destroy any SWBT
records furnished to Recipient pursuant to this Agreement.
7) Notwithstanding the provisions of 6) above, and except as provided in 8)
below, Recipient may copy, take notes from, make, and use (for the limited
purposes specified herein) drawings with reference to the following records
provided by SWBT to Recipient for inspection: pole and conduit route maps, cable
plat maps, and plant location records reflecting approximate locations of SWBT's
existing poles, ducts, conduits, and rights-of-way. All such copies, notes, and
drawings (whether in hardcopy or electronic form) shall be marked with the
legend: "PROPRIETARY INFORMATION: NOT FOR USE BY OR DISCLOSURE TO ANY PERSON WHO
HAS NOT EXECUTED A NONDISCLOSURE AGREEMENT (SWBT POLE, DUCT, CONDUIT, AND
RIGHT-OF-WAY)."
8) No references to cable counts, cable designations or cable-specific
information, circuit information, or customer-specific information of any kind
may be included in any copies, notes, or drawings made pursuant to 7) above;
provided, however, that Recipient may make estimates regarding the physical
characteristics (such as size and weight) of the cables being surveyed when
necessary to make engineering determinations regarding the capacity, safety,
reliability, or suitability of SWBT's poles, ducts, conduits, or rights-of-way
for Recipient/Applicant's intended uses.
306
APPENDIX V
NONDISCLOSURE AGREEMENT (OKLAHOMA) -- PAGE 3 OF 4
9) All records and information relating to poles, ducts, conduits, and
rights-of-way provided to Recipient/Applicant by SWBT (whether in writing,
orally, or in electronic or other formats) shall be deemed to be proprietary
information subject to this Agreement without regard to whether such
information, at the time of disclosure, has been marked with restrictive
notations such as "Proprietary," "Restricted Proprietary," "Confidential," "Not
to Be Copied or Reproduced," or the like.
10) This Agreement applies only to records and information provided to
Recipient by SWBT and does not apply to records and information obtained by
Recipient from other lawful sources.
11) This Agreement does not prohibit the disclosure of records or
information in response to subpoenas and/or orders of a governmental agency or
court of competent jurisdiction. In the event Recipient receives an agency or
court subpoena requiring such disclosure, Recipient shall immediately, and in no
event later than five calendar days after receipt, notify SWBT in writing.
12) The Parties agree that, in the event of a breach or threatened breach
of this Agreement, SWBT may seek any and all relief available in law or in
equity as a remedy for such breach, including but not limited to monetary
damages, specific performance, and injunctive relief The Parties acknowledge
that SWBT's records and information relating to poles, ducts, conduits, and
rights-of-way include valuable and unique information and that disclosure of
such information (including circuit information) will result in irreparable
injury to SWBT. In the event of any breach of this Agreement for which legal or
equitable relief is sought, SWBT shall be entitled to recover from Recipient all
reasonable attorney's fees and other reasonable costs (including but not limited
to fees of expert witnesses) incurred by SWBT in connection with the prosecution
of its claims against Recipient.
13) This Agreement shall be effective on the effective date shown above and
shall remain in full force and effect until terminated by either party as
provided herein. Either party may, at any time, with or without cause, terminate
this Agreement by giving the other party 60 days' advance written notice of its
decision to terminate. The parties further agree that termination of this
Agreement shall have no effect on the duty of any person or entity, including
Recipient, to abide by all terms of this Agreement with respect to records and
information received by Recipient while this Agreement is in effect.
14) This Agreement shall benefit and be binding on the parties below and
their respective heirs, successors, and assigns.
15) This Agreement will be governed by the laws of the State of Oklahoma.
307
APPENDIX V
NONDISCLOSURE AGREEMENT (OKLAHOMA) -- PAGE 4 OF 4
16) This Agreement sets forth the entire agreement and understanding
between the parties with respect to the subject matter hereof, and none of the
terms of this Agreement may be amended or modified except by written instrument
signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused this Agreement to be executed by their duly authorized representatives,
in duplicate, as of the dates set forth below.
Southwestern Xxxx Telephone Company
------------------------------
Recipient (Print or Type Name)
By By
------------------------------ -----------------------------------
Signature of Recipient or Signature
Representative
------------------------------ -----------------------------------
Name (Printed or Typed) Name (Printed or Typed)
------------------------------ -----------------------------------
Address Address
------------------------------ -----------------------------------
City, State, and Zip Code City, State, and Zip Code
------------------------------ -----------------------------------
Phone Phone
------------------------------ -----------------------------------
Date Date
308
Agreement No._________
APPENDIX VI
NOTICES TO APPLICANT (OKLAHOMA)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Notices in general. Except as otherwise stated in this Appendix, all
notices to Applicant shall be given to Applicant's duly authorized agent or
attorney as specified in Section 29.01 of the Master Agreement.
Changes in notice requirements. Changes in the notice requirements set
forth in this Appendix may be made by Applicant from time to time in accordance
with the provisions of Section 29.03 of the Master Agreement.
Special notice provisions. The following special notice provisions, if any,
shall apply:
309
Agreement No._________
APPENDIX VII
NOTICES TO SWBT (OKLAHOMA) -- PAGE 1 OF 3
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
Utility Liaison Supervisor (ULS). Except as otherwise stated in this
Appendix, all notices to SWBT shall be given to the Utility Liaison Supervisor
(ULS) designated in APPENDIX VIII of the Master Agreement. The Utility Liaison
Supervisor is generally responsible for coordinating applications for access to
SWBT's poles, ducts, conduits, and rights-of-way and serving as Applicant's
initial point of contact for matters arising out of or in connection with the
administration of the Master Agreement. Notices to the ULS shall be given in
writing in the manner prescribed in Section 29.02. Notices to be sent to the ULS
include, but are not limited to, notices under the following provisions of the
Master Agreement.
7.01 Notification of Designation of Primary Point of Contact
7.03(a) Notification of intent to review records
8.XX All Notifications in Article 8
9.XX All Notifications in Article 9
10.04(e) Notification Regarding Make-Ready Work
12.03(d) Notification of placing J-hook on non-licensed pole
12.04 Notification of occupation of maintenance duct for short-term use
12.06 Notification of Applicant's maintenance contact
13.01 Notification of planned modifications
14.02(c) Notification of Applicant's desire to add to or modify its existing attachment
15.02(b) Notification of occupation of maintenance duct for short-term emergency use
15.03 Notification of emergency repair coordinators
16.01 Notification that facilities have been brought into compliance
17.02(c) Disclaimer of ownership or responsibility for untagged facilities
17.06 Notification of Applicant's response to ownership of facilities in question
310
APPENDIX VII
NOTICES TO SWBT (OKLAHOMA) -- PAGE 2 OF 3
18.01(a) Notice of intent to remove facilities
18.01(e) Notice of intent to terminate license
18.06 Notification of completion of removal of facilities
20.01(c) Notification of change of bond
21.17 Notification of claims
23.XX All notifications of insurance coverage in Article 23
24.03 Notification of assignment
25.01 Notification of termination
25.03 Notification of cure of breach
27.04 Notice of elective termination
29.03 Notification of change in notice requirements
Other notices. The following notices may be given orally or in writing
(including fax) and shall be given to SWBT's Local Service Provider Center
(LSPC) at 0-000-000-0000 instead of the ULS.
6.05(a) Notifications relating to electrical interference
6.09(d) Notifications of unsafe conditions
6.11(a) Notification of manhole entry
6.13(c) Notification of environmental contaminants
10.02(b) Notification of materials required for self-provisioning of inner
duct
15.04 Notification of conditions requiring emergency repair
15.06(a) Notification of performing corrective work on emergency repair.
(advanced notice)
311
APPENDIX VII
NOTICES TO SWBT (OKLAHOMA) -- PAGE 3 OF 3
15.06(b) Notification of performing corrective work on emergency repair. (no
advanced notice)
Additional information and questions concerning notice requirements. The
ULS, as Applicant's initial point of contact, will provide additional
information to Applicant concerning notification procedures for notices to be
given to LSPC. Questions to SWBT concerning notice requirements should be
directed to the ULS. The ULS is not authorized to provide Applicant legal advice
with respect to notice requirements. Questions by Applicant's personnel and
other persons acting on Applicant's behalf concerning Applicant's legal
obligations should be directed to Applicant's legal counsel or such other
personnel as Applicant may direct.
Changes in notice requirements. Changes in the notice requirements set
forth in this Appendix may be made by SWBT from time to time in accordance with
the provisions of Section 29.03 of the Master Agreement.
312
Agreement No.
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APPENDIX VIII
IDENTIFICATION OF UTILITY LIAISON SUPERVISOR (OKLAHOMA)
This Appendix is an integral part of the Master Agreement for Access to
Poles, Ducts, Conduits, and Rights-of-Way to which it is attached.
The Utility Liaison Supervisor for Oklahoma is named below. Notices to the
Utility Liaison Supervisor should be addressed as follow:
Name: Xxxxxxxx Xxxxxxx
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Title: Utility Liaison Supervisor
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Firm: Southwestern Xxxx Telephone Company
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Address: 0000 X. 00xx, Xxxxx 1
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City/State/Zip: Xxxxx, Xxxxxxxx 00000
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