This Interconnection, Collocation and Resale Agreement (the “Agreement”), dated the 1st day of May, 2007, is entered into by and between Managed Services, Inc. (“CLEC”), a North Carolina corporation, and United Telephone Company of the Carolinas d/b/a Embarq (“Embarq”), a South Carolina corporation, to establish the rates, terms and conditions for local interconnection, collocation, local resale, and purchase of unbundled Network Elements (individually referred to as the “service” or collectively as the “services”).
WHEREAS, the Parties wish to interconnect their local exchange networks for the purposes of transmission and termination of calls, so that customers of each can receive calls that originate on the other’s network and place calls that terminate on the other’s network, and for CLEC’s use in the provision of exchange access (“Local Interconnection”); and
WHEREAS, CLEC wishes to purchase Telecommunications Services for resale to others, and Embarq is willing to provide these services; and
WHEREAS, CLEC wishes to purchase unbundled Network Elements, ancillary services and functions and additional features (“Network Elements”) for the provision of Telecommunications Services to others, and Embarq is willing to provide unbundled Network Elements and services; and
WHEREAS, the Parties intend the rates, terms and conditions of this Agreement, and their performance of obligations thereunder, to comply with the Communications Act of 1934, as amended (the “Act”), the Rules and Regulations of the Federal Communications Commission (“FCC”), and the orders, rules and regulations of the Commission; and
WHEREAS, the Parties wish to replace any and all other prior agreements, written and oral, applicable to the state of South Carolina.
Now, therefore, in consideration of the terms and conditions contained in this Agreement, CLEC and Embarq hereby mutually agree as follows:
PART A – DEFINITIONS
1. DEFINED TERMS
1.1. Capitalized terms defined in this Section shall have the meanings as set forth in this Agreement. Other terms used but not defined will have the meanings ascribed to them in the Act or in the Rules and Regulations of the FCC or the Commission. The Parties acknowledge that other terms appear in this Agreement, which are not defined or ascribed as stated above. The Parties agree that any such terms shall be construed in accordance with their customary usage in the telecommunications industry as of the Effective Date of this Agreement.
1.2. “911 Service” means a universal telephone number which gives the public direct access to the Public Safety Answering Point (“PSAP”). Basic 911 service collects 911 calls from one or more local exchange switches that serve a geographic area. The calls are then sent to the correct authority designated to receive such calls.
1.3. “Access Services” refers to interstate and intrastate switched access and private line transport services.
1.4. “Act” means the Communications Act of 1934, as amended.
1.5. “Affiliate” is as defined in the Act.
1.6. “Augment” refers to a modification (increase/addition or decrease/reduction) to an existing Collocation Arrangement. Examples include changes to the space, cage, power, cross-connect cabling, conduit, vault, riser, or cabling associated with the Collocation Arrangement.
1.7. “Automated Message Accounting” (“AMA”) is the structure inherent in switch technology that initially records telecommunication message information. AMA format is contained in the Automated Message Accounting document, published by Telcordia as GR-1100-CORE which defines the industry standard for message recording.
1.8. “Automatic Location Identification” (“ALI”) means a feature that provides the caller’s telephone number, address and the names of the Emergency Response agencies that are responsible for that address.
1.9. “Automatic Location Identification/Data Management System” (“ALI/DMS”) means the emergency service (“E911/911”) database containing subscriber location information (including name, address, telephone number, and sometimes special information from the local service provider) used to determine to which Public Safety Answering Point (“PSAP”) to route the call.
1.10. “Automatic Number Identification” (“ANI”) is a feature that identifies and displays the number of a telephone line that originates a call.
1.11. “Automatic Route Selection” (“ARS”) is a service feature associated with a specific grouping of lines that provides for automatic selection of the least expensive or most appropriate transmission facility for each call based on criteria programmed into the system.
1.12. “ATU - C” refers to an ADSL Transmission Unit - Central Office.
1.13. “Busy Line Verify/Busy Line Verify Interrupt” (“BLV/BLVI”) means an operator call in which the caller inquires as to the busy status of, or requests an interruption of a call on another subscriber’s telephone line.
1.14. “Business Day(s)” means the days of the week excluding Saturdays, Sundays, and all Embarq holidays.
1.15. “Business Line” is an Embarq-owned switched access line used to serve a business customer, whether by Embarq or by a competitive LEC that leases the line from Embarq. The number of Business Lines in a Wire Center shall equal the sum of all Embarq business switched access lines, plus the sum of all UNE loops connected to that Wire Center, including UNE loops provisioned in combination with other unbundled elements. Among these requirements, Business Line tallies (1) shall include only those access lines connecting end-user customers with Embarq end-offices for switched services, (2) shall not include non-switched special access lines, (3) shall account for ISDN and other digital access lines by counting each 64 kbps-equivalent as one line. For example, a DS1 line corresponds to twenty-four (24) 64 kbps-equivalents, and therefore to twenty- four (24) “Business Lines.”
1.16. “Cable Vault” shall mean a location in a Premises where facilities enter the Premises from the Outside Cable Duct and access the Inner Duct for distribution within the Premises.
1.17. “Carrier Access Billing System” (“CABS”) is the system which is defined in a document prepared under the direction of the Billing Committee of the OBF. The CABS document is published by Telcordia in Volumes 1, 1A, 2, 3, 3A, 4 and 5 as Special Reports SR-OPT-001868, SR-OPT-0011869, SR-OPT-001871, SR-OPT-001872, SR-OPT-001873, SR-OPT-001874, and SR-OPT-001875, respectively, and contains the recommended guidelines for the billing of access and other connectivity services. Embarq’s carrier access billing system is its Carrier Access Support System (CASS). CASS mirrors the requirements of CABS.
1.18. “Central Office Building” or “Building” shall mean a structure (not including a controlled environment vault ("CEV")) housing Embarq network equipment that is under the control of Embarq and for which Embarq has the right to grant access and/or occupation by third parties.
1.19. “Central Office Switches” - are switching facilities within the public switched telecommunications network, including, but not limited to:
1.19.1. “End Office Switches” (“EOs”) are switches from which end user Telephone Exchange Services are directly connected and offered.
1.19.2. “Tandem Switches” are switches that are used to connect and switch trunk circuits between and among Central Office Switches.
1.19.3. “Remote Switches” are switches that are away from their host or control office. All or most of the central control equipment for the remote switch is located at the host or Control Office.
1.20. “Centrex” means a Telecommunications Service associated with a specific grouping of lines that uses central office switching equipment for call routing to handle direct dialing of calls, and to provide numerous private branch exchange-like features.
1.21. “CLASS/LASS” (Telcordia Service Mark) refers to service features that utilize the capability to forward a calling party’s number between end offices as part of call setup. Features include Automatic Callback, Automatic Recall, Caller ID, Call Trace, and Distinctive Ringing.
1.22. “Collocation Arrangement” refers to a single, specific provision of collocation in a particular Premises, not limited to a cage enclosing CLEC’s equipment within the Premises.
1.23. “Collocation Space” shall mean an area of space located in a building to be used by CLEC to house telecommunications equipment that is necessary for interconnection or access to UNEs. Additionally, roof or wall space used for wireless interconnection shall be included in the definition where applicable.
1.24. “Commingle” means the act of Commingling.
1.25. “Commingling” means the connecting, attaching, or otherwise linking of an unbundled Network Element, or a combination of unbundled Network Elements, to one or more facilities or services that CLEC has obtained at wholesale from Embarq or the combining of an unbundled Network Element, or a combination of unbundled Network Elements with one or more such facilities or services.
1.26. “Commission” means the South Carolina Public Service Commission.
1.27. “Common Channel Signaling” (“CCS”) is a method of digitally transmitting call set-up and network control data over a digital signaling network fully separate from the public switched telephone network that carries the actual call.
1.28. “Common Transport” provides a local interoffice transmission path between End Office Switches, between End Office Switches and Tandem Switches and between Tandem Switches in Embarq’s network. Common Transport is shared between multiple customers and is required to be switched at the Tandem Switch.
1.29. “Confidential and/or Proprietary Information” has the meaning set forth in Section 15.
1.30. “Controlled Environment Vault” (“CEV”) shall mean a below ground room other than a Central Office Building which is controlled by Embarq and which is suitable for collocation of telecommunications equipment under controlled temperature and humidity.
1.31. "Control Office" is an exchange carrier center or office designated as the Party’s single point of contact for the provisioning and maintenance of its portion of local interconnection arrangements.
1.32. “Copper Loop” is a stand-alone local loop comprised entirely of copper wire or cable. Copper Loops include two-wire and four-wire analog voice-grade Copper Loops, digital Copper Loops (e.g., DS0s and integrated services digital network lines), as well as two-wire and four-wire Copper Loops conditioned to transmit the digital signals needed to provide digital subscriber line services, regardless of whether the Copper Loops are in service or held as spares. The Copper Loop includes attached electronics using time division multiplexing technology, but does not include packet switching capabilities.
1.33. “Custom Calling Features” means a set of Telecommunications Service features available to residential and single-line business customers including call-waiting, call-forwarding and three- party calling.
1.34. “Customer Proprietary Network Information” (“CPNI”) is as defined in the Act.
1.35. “Database Management System” (“DBMS”) is a computer process used to store, sort, manipulate and update the data required to provide Selective Routing and ALI.
1.36. "Day" means calendar days unless otherwise specified.
1.37. “Dedicated Transport” includes Embarq transmission facilities between Wire Centers or Switches owned by Embarq, or between Wire Centers or Switches owned by Embarq and Switches owned by CLEC, including, but not limited to, DS1-, DS3-, and OCn-capacity level services, as well as dark fiber, dedicated to a particular customer or carrier.
1.38. “Demarcation Point” is that point on the facility where Embarq’s control of the facility ceases, and the End User Customer’s control of the facility begins.
1.39. “Digital Subscriber Line Access Multiplexer” (“DSLAM”) is equipment that links end-user xDSL connections to a single high-speed packet switch, typically ATM or IP.
1.40. “Directory Assistance Database” refers to any subscriber record used by Embarq in its provision
of live or automated operator-assisted directory assistance including but not limited to 411, 555- 1212, NPA-555-1212.
1.41. “Directory Assistance Services” provides listings to callers. Directory Assistance Services may include the option to complete the call at the caller’s direction.
1.42. “DS1 Loop” is a digital Local Loop having a total digital signal speed of 1.544 megabytes per second. DS1 Loops include, but are not limited to, two-wire and four-wire Copper Loops capable of providing high-bit rate digital subscriber line services, including T1 services.
1.43. “DS3 Loop” is a digital Local Loop having a total digital signal speed of 44.736 megabytes per second.
1.44. “DSLAM” refers to a Digital Subscriber Line Access Multiplexer.
1.45. “Duct” is a single enclosed path to house facilities to provide Telecommunications Services.
1.46. “Effective Date” is the date referenced in the opening paragraph on page 1 of the Agreement, unless otherwise required by the Commission.
1.47. “Electronic Interface” means access to operations support systems consisting of preordering, ordering, provisioning, maintenance and repair and billing functions.
1.48. “Emergency Response Agency” is a governmental entity authorized to respond to requests from the public to meet emergencies.
1.49. “Emergency Service Number” (“ESN”) is a number assigned to the ALI and selective routing databases for all subscriber telephone numbers. The ESN designates a unique combination of fire, police and emergency medical service response agencies that serve the address location of each in- service telephone number.
1.50. “Enhanced Extended Link” (“EEL”) for purposes of this Agreement refers to the combination of unbundled Network Elements, specifically NID, Loop, multiplexing (MUX) if necessary and Dedicated Transport, in the Embarq Network.
1.51. “Exchange Message Interface System” (“EMI”) is the Industry standard for exchanging telecommunications message information for billable, non-billable, sample settlement and study records. The EMI is published by ATIS (Alliance for Telecommunications Industry Solutions).
1.52. “End Date” is the date this Agreement terminates as referenced in 5.1.
1.53. “Enhanced 911 Service” (“E911”) means a telephone communication service which will automatically route a call dialed “9-1-1” to a designated public safety answering point (PSAP) attendant and will provide to the attendant the calling party’s telephone number and, when possible, the address from which the call is being placed and the Emergency Response agencies responsible for the location from which the call was dialed.
1.54. “FCC” means the Federal Communications Commission.
1.55. “Fiber-based Collocator” means any carrier, unaffiliated with Embarq, that maintains a Collocation Arrangement in Embarq’s wire center, with active electrical power supply, and operates a fiber-optic cable or comparable transmission facility that (1) terminates at a Collocation Arrangement within the Wire Center; (2) leaves Embarq’s Wire Center premises; and (3) is owned by a party other than Embarq or any affiliate of Embarq, except as set forth in this definition.
Dark fiber obtained from Embarq on an indefeasible right of use basis shall be treated as non- Embarq fiber-optic cable. Two or more Affiliated Fiber-based Collocators in a single Wire Center shall collectively be counted as a single Fiber-based Collocator. For purposes of this definition,
the term Affiliate is defined by 47 USC § 153(1) and any relevant interpretation in the Act.
1.56. “Fiber-to-the-curb Loop” (“FTTC Loop”) means a Local Loop consisting of fiber optic cable connecting to a copper distribution plant that is not more than 500 feet from the customer’s premises or, in the case of predominantly residential multiple dwelling units (“MDUs”), not more than 500 feet from the MDU’s minimum point of entry (“MPOE”). The fiber optic cable in a fiber- to-the curb loop must connect to a copper distribution plant at a serving area interface from which every other copper distribution subloop also is not more than 500 feet from the respective customer’s premises.
1.57. “Fiber-to-the-home Loop” (“FTTH Loop”) means a Local Loop consisting entirely of fiber optic cable, whether dark or lit, and serving an end-user’s customer premises or, in the case of predominantly residential MDUs, a fiber optic cable, whether dark or lit, that extends to the multiunit premises’ MPOE.
1.58. “Grandfathered Service” means service which is no longer available for new customers and is limited to the current customer at their current locations with certain provisioning limitations, including but not limited to upgrade denials, feature adds/changes and responsible/billing party.
1.59. “High Frequency Portion of the local Loop” (“HFPL”) is defined as the frequency range above the voice band on a Copper Loop facility that is being used to carry analog circuit-switched voice band transmissions provided by Embarq to the end-user customer.
1.60. “Hybrid Loop” means a Local Loop comprised of both fiber optic cable, usually in the feeder plant, and copper wire or cable usually in the distribution plant.
1.61. “Incumbent Local Exchange Carrier” (“ILEC”) is as defined in the Act.
1.62. “Information Services” shall have the meaning defined in 47 CFR 51.5.
1.63. “Interexchange Carrier” (“IXC”) means a provider of interexchange Telecommunications Services.
1.64. “Interexchange Service” shall mean telecommunications service between stations in different exchange areas.
1.65. “ISP-Bound Traffic,” for the purposes of this Agreement, is defined as traffic that is transmitted to an Internet Service Provider (“ISP”) consistent with the ISP Remand Order (FCC 01-131),16
F.C.C. Rcd. 9151 (2001).
1.66. “Inner Duct” or “Conduit" shall mean any passage or opening in, on, under, over or through the Embarq Central Office Building cable or conduit systems.
1.67. “Line Information Data Base” (“LIDB”) means a Service Control Point (SCP) database that provides for such functions as calling card validation for telephone line number cards issued by Embarq and other entities and validation for collect and billed-to-third services.
1.68. “Live Load Capacity” as it relates to a CLEC's Collocation Space refers to the structural strength of the floor to support the weight of CLEC's property and equipment installed in the collocated space.
1.69. “Local Loop” refers to a transmission facility between the main distribution frame [cross- connect], or its equivalent, in an Embarq Central Office or wire center, and up to the demarcation point (e.g., Network Interface Device) at a customer’s premises, to which CLEC is granted exclusive use. This includes all electronics, optronics and intermediate devices (including repeaters and load coils) used to establish the transmission path to the customer premises. Local loops include Copper Loops, Hybrid Loops, DS1 loops, DS3 loops, FTTC Loops and FTTH
1.70. “Local Number Portability” (“LNP”) means the ability of users of Telecommunications Services to retain, at the same location, existing telecommunications numbers without impairment of quality, reliability, or convenience when switching from one Telecommunications Carrier to another.
1.71. “Local Service Request” (“LSR”) means an industry standard form or a mutually agreed upon change thereof, used by the Parties to add, establish, change or disconnect local services.
1.72. “Local Traffic” for the purposes of this Agreement the Parties shall agree that “Local Traffic” means traffic (excluding Commercial Mobile Radio Service “CMRS” traffic) that is originated and terminated within Embarq’s local calling area, or mandatory extended area service (EAS) area, as defined by the Commission or, if not defined by the Commission, then as defined in existing Embarq Tariffs. For this purpose, Local Traffic does not include any ISP-Bound Traffic.
1.73. “Mobile Wireless Service” means any mobile wireless telecommunications service, including any commercial mobile radio service (CMRS). CMRS includes paging, air-ground radiotelephone service and offshore radiotelephone service, as well as mobile telephony services, such as the voice offerings of carriers using cellular radiotelephone, broadband PCS and SMR licenses.
1.74. “Multiple Exchange Carrier Access Billing” (“MECAB”) refers to the document prepared by the Billing Committee of the ATIS Ordering and Billing Forum (“OBF”). The MECAB document contains the recommended guidelines for the billing of an access service provided to a customer by two or more providers or by one provider in two or more states within a single LATA.
1.75. “Multiple Exchange Carrier Ordering And Design” (“MECOD”) refers to the guidelines for Access Services - Industry Support Interface, a document developed by the Ordering/Provisioning Committee under the auspices of the 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 Telcordia as Special Report SR STS-002643, establishes recommended guidelines for processing orders for Access Service which is to be provided by two or more Telecommunications Carriers.
1.76. “National Emergency Number Association” (“NENA”) is an association with a mission to foster the technological advancement, availability and implementation of 911 nationwide.
1.77. “Network Element” is as defined in the Act.
1.78. “North American Numbering Plan” (“NANP”) means the plan for the allocation of unique 10- digit directory numbers consisting of a three-digit area code, a three-digit office code, and a four- digit line number. The plan also extends to format variations, prefixes, and special code applications.
1.79. “Numbering Plan Area” (“NPA”) (sometimes referred to as an area code) is the three-digit indicator which is designated by the first three digits of each 10-digit telephone number within the NANP. Each NPA contains 800 possible NXX Codes. There are two general categories of NPA, “Geographic NPAs” and “Non-Geographic NPAs.” A “Geographic NPA” is associated with a defined geographic area, and all telephone numbers bearing such NPA are associated with services provided within that geographic area. A “Non-Geographic NPA,” also known as a “Service Access Code (SAC Code)” is typically associated with a specialized Telecommunications Service which may be provided across multiple geographic NPA areas; 500, 800, 900, 700, and 888 are examples of Non-Geographic NPAs.
1.80. “NXX,” “NXX Code,” “COC,” “Central Office Code,” or “CO Code” is the three-digit switch entity indicator which is defined by the fourth, fifth and sixth digits of a 10-digit telephone number
1.81. “OBF” means the Ordering and Billing Forum, which functions under the auspices of the CLC of the Alliance for Telecommunications Industry Solutions (ATIS).
1.82. “Operator Services” provides for:
1.82.1. operator handling for call completion (e.g., collect calls);
1.82.2. operator or automated assistance for billing after the subscriber has dialed the called number (e.g., credit card calls); and
1.82.3. special services (e.g., BLV/BLI, Emergency Agency Call).
1.83. “Outside Cable Duct” shall mean any space located outside the Central Office Building and owned by or under the control of Embarq through which Embarq runs its cable, conduit or other associated facilities.
1.84. “Parity” means, subject to the availability, development and implementation of necessary industry standard Electronic Interfaces, the provision by Embarq of services, Network Elements, functionality or telephone numbering resources under this Agreement to CLEC, including provisioning and repair, at least equal in quality to those offered to Embarq, its Affiliates or any other entity that obtains such services, Network Elements, functionality or telephone numbering resources. Until the implementation of necessary Electronic Interfaces, Embarq shall provide such services, Network Elements, functionality or telephone numbering resources on a non- discriminatory basis to CLEC as it provides to its Affiliates or any other entity that obtains such services, Network Elements, functionality or telephone numbering resources.
1.85. “P.01 Transmission Grade Of Service” (“GOS”) means a trunk facility provisioning standard with the statistical probability of no more than one call in 100 blocked on initial attempt during the average busy hour.
1.86. “Parties” means, jointly, Embarq and CLEC, and no other entity, Affiliate, subsidiary or assign.
1.87. “Party” means either Embarq or CLEC, and no other entity, Affiliate, subsidiary or assign.
1.88. “Percent Local Usage” (“PLU”) is a calculation which represents the ratio of the local minutes to the sum of local and intraLATA toll minutes between exchange carriers sent over Local Interconnection Trunks. Directory assistance, BLV/BLVI, 900, and 976 transiting calls from other exchange carriers and switched access calls are not included in the calculation of PLU.
1.89. “Physical Collocation” is as defined in 47 CFR 51.5.
1.90. “Point of Interconnection” (“POI”) is the physical point that establishes the technical interface, the test point, and the operational responsibility hand-off between CLEC and Embarq for the local interconnection of their networks. The POI also establishes the demarcation point to delineate each Party’s financial obligations for facility costs.
1.91. “Premises” is as defined in 47 CFR 51.5.
1.92. “Pre-Order Loop Qualification” (“Loop Qualification”) is an OSS function that includes supplying loop qualification information to CLECs as part of the Pre-ordering Process. Examples of the type of information provided are:
1.92.1. Composition of the loop material, i.e. fiber optics, copper;
1.92.2. Existence, location and type of any electronic or other equipment on the loop, including but not limited to:
220.127.116.11. Digital Loop Carrier (“DLC”) or other remote concentration devices;
18.104.22.168. Feeder/distribution interfaces;
22.214.171.124. Bridge taps;
126.96.36.199. Load coils;
188.8.131.52. Pair gain devices; or
184.108.40.206. Disturbers in the same or adjacent binders.
1.92.3. Loop length which is an indication of the approximate loop length, based on a 26- gauge equivalent and is calculated on the basis of Distribution Area distance from the central office;
1.92.4. Wire gauge or gauges; and
1.92.5. Electrical parameters.
1.93. “Proprietary Information” shall have the same meaning as Confidential Information.
1.94. “Rate Center” means the geographic point and corresponding geographic area which are associated with one or more particular NPA-NXX codes which have been assigned to Embarq or CLEC for its provision of basic exchange Telecommunications Services. The “rate center point” is the finite geographic point identified by a specific V&H coordinate, which is used to measure distance-sensitive end user traffic to/from the particular NPA-NXX designations associated with the specific Rate Center. The “rate center area” is the exclusive geographic area identified as the area within which Embarq or CLEC will provide Basic Exchange Telecommunications Services bearing the particular NPA-NXX designations associated with the specific Rate Center. The Rate Center point must be located within the Rate Center area.
1.95. “Routing Point” means a location which Embarq or CLEC has designated on its own network as the homing (routing) point for traffic inbound to basic exchange Services provided by Embarq or CLEC which bear a certain NPA-NXX designation. The Routing Point is employed to calculate mileage measurements for the distance-sensitive transport element charges of Switched Access Services. Pursuant to Telcordia Practice BR 795-100-100, the Routing Point may be an “End Office” location, or a “LEC Consortium Point of Interconnection.” Pursuant to that same Telcordia Practice, examples of the latter shall be designated by a common language location identifier (CLLI) code with (x)MD or X(x) in positions 9, 10, 11, where (x) may by any alphanumeric A-Z or 0-9. The above referenced Telcordia document refers to the Routing Point as the Rating Point. The Rating Point/Routing Point need not be the same as the Rate Center Point, nor must it be located within the Rate Center Area, but must be in the same LATA as the NPA-NXX.
1.96. “Small Exchange Carrier Access Billing” (“SECAB”) means the document prepared by the Billing Committee of the OBF. The SECAB document, published by ATIS as Special Report SR OPT-001856, contains the recommended guidelines for the billing of access and other connectivity services.
1.97. “Selective Routing” is a service which automatically routes an E911 call to the PSAP that has jurisdictional responsibility for the service address of the telephone that dialed 911, irrespective of telephone company exchange or Wire Center boundaries.
1.98. “Signaling Transfer Point” (“STP”) means a signaling point that performs message routing functions and provides information for the routing of messages between signaling points within or
between CCIS networks. An STP transmits, receives and processes CCIS messages.
1.99. “Splitter” is a device that divides the data and voice signals concurrently moving across the loop, directing the voice traffic through copper tie cables to the switch and the data traffic through another pair of copper tie cables to multiplexing equipment for delivery to the packet-switched network. The Splitter may be directly integrated into the DSLAM equipment or may be externally mounted.
1.100. “Street Index Guide” (“SIG”) is a database defining the geographic area of an E911 Service. It includes an alphabetical list of the street names, high-low house number ranges, community names, and Emergency Service Numbers provided by the counties or their agents to Embarq.
1.101. “Switch” means a Central Office Switch as defined in this Part A.
1.102. “Synchronous Optical Network” (“SONET”) is an optical interface standard that allows interworking of transmission products from multiple vendors (i.e., mid-span meets). The base rate is 51.84 MHps (OC-1/STS-1 and higher rates are direct multiples of the base rate up to 1.22 GHps).
1.103. “Tandem Office Switches,” “Tandem,” and “Tandem Switching” describe Class 4 switches which are used to connect and switch trunk circuits between and among End Office Switches and other tandems.
1.104. “Tariff” means a filing made at the state or federal level for the provision of a Telecommunications Service by a Telecommunications Carrier that provides for the terms, conditions and pricing of that service. Such filing may be required or voluntary and may or may not be specifically approved by the Commission or FCC.
1.105. “Technically Feasible” refers solely to technical or operational concerns, rather than economic, space, or site considerations.
1.106. “Tier 1” Wire Centers are those Embarq Wire Centers that contain at least four Fiber-based Collocators, at least 38,000 Business Lines, or both. Tier 1 Wire Centers also are those Embarq tandem switching locations that have no line-side switching facilities, but nevertheless serve as a point of traffic aggregation accessible by competitive LECs. Once a Wire Center is determined to be a Tier 1 Wire Center, that Wire Center is not subject to later reclassification as a Tier 2 or Tier 3 Wire Center.
1.107. “Tier 2” Wire Centers are those Embarq Wire Centers that are not Tier 1 Wire Centers but contain at least three (3) Fiber-based Collocators, at least 24,000 Business Lines, or both. Once a Wire Center is determined to be a Tier 2 Wire Center, that Wire Center is not subject to later reclassification as a Tier 3 Wire Center.
1.108. “Tier 3” Wire Centers are those Embarq Wire Centers that are not Tier 1 or Tier 2 Wire Centers.
1.109. “Telecommunications” is as defined in the Act.
1.110. “Telecommunications Carrier” is as defined in the Act.
1.111. “Telecommunications Service” is as defined in the Act.
1.112. “Transit Service” means the delivery of Transit Traffic.
1.113. “Transit Traffic” means Local Traffic or ISP-Bound Traffic that originated on CLEC’s network, transited through Embarq’s network, and terminated to a third party Telecommunications Carrier’s network or that is originated on a third party Telecommunications Carrier’s network, transited through Embarq, and terminated to CLEC’s network.
1.114. “Virtual Collocation” is as defined in 47 CFR 51.5.
1.115. “Wholesale Service” means Telecommunication Services that Embarq provides at retail to subscribers who are not Telecommunications Carriers as set forth in 47 USC § 251(c)(4) which Embarq provides to resellers at a wholesale rate.
1.116. “Wire center” is the location of an incumbent LEC local switching facility containing one or more central offices, as defined in part 36 of the Code of Federal Regulations. The Wire Center boundaries define the area in which all customers served by a given Wire Center are located.
1.117. “xDSL” refers to a generic term for a series of high speed transmission protocols, equipment, and services designed to operate over copper wire. This series includes but is not limited to ADSL, VDSL, SDSL, and others.
PART B – GENERAL TERMS AND CONDITIONS
2. SCOPE OF THIS AGREEMENT
2.1. This Agreement, including Parts A through L, Tables One and Two and exhibits, specifies the rights and obligations of each Party with respect to the establishment, purchase, and sale of Local Interconnection, Collocation, resale of Telecommunications Services and Unbundled Network Elements. Certain terms used in this Agreement shall have the meanings defined in PART A – DEFINITIONS, or as otherwise elsewhere defined throughout this Agreement. Other terms used but not defined in this Agreement will have the meanings ascribed to them in the Act and in the FCC’s and the Commission’s rules, regulations and orders. PART B sets forth the general terms and conditions governing this Agreement. The remaining Parts set forth, among other things, descriptions of the services, pricing, technical and business requirements, and physical and network security requirements.
3. NETWORK CHANGES
3.1. Embarq shall provide notice of network changes and upgrades in accordance with §§ 51.325 through 51.335 of Title 47 of the Code of Federal Regulations. Embarq may discontinue any interconnection arrangement, Telecommunications Service, or Network Element provided or required hereunder due to network changes or upgrades after providing CLEC notice as required by this Section. Embarq agrees to cooperate with CLEC and/or the appropriate regulatory body in any transition resulting from such discontinuation of service and to minimize the impact to customers, which may result from such discontinuance of service.
4. REGULATORY APPROVALS
4.1. This Agreement, and any amendment or modification hereof, will be submitted to the Commission for approval in accordance with § 252 of the Act within thirty (30) Days after obtaining the last required Agreement signature. Embarq and CLEC shall use their best efforts to obtain approval of this Agreement by any regulatory body having jurisdiction over this Agreement. In the event any governmental authority or agency rejects any provision hereof, the Parties shall negotiate promptly and in good faith such revisions as may reasonably be required to achieve approval.
4.2. The Parties acknowledge that the respective rights and obligations of each Party as set forth in this Agreement are based on the texts of the Act and the orders, rules and regulations promulgated thereunder by the FCC and the Commission as of the Effective Date (“Applicable Rules”). In the event of any amendment of the Act, any effective legislative action or any effective regulatory or judicial order, rule, regulation, arbitration award, dispute resolution procedures under this Agreement or other legal action purporting to apply the provisions of the Act to the Parties or in which the court, FCC or the Commission makes a generic determination that is generally applicable which revises, modifies or reverses the Applicable Rules (individually and collectively, "Amended Rules"), either Party may, by providing written notice to the other Party, require that the affected provisions of this Agreement be renegotiated in good faith and this Agreement shall be amended accordingly within sixty (60) Days of the date of the notice to reflect the pricing, terms and conditions of each such Amended Rules relating to any of the provisions in this Agreement.
4.3. Notwithstanding any other provision of this Agreement to the contrary Section 4.2 hereof shall control. Any rates, terms or conditions thus developed or modified shall be substituted in place of those previously in effect and shall be effective under this Agreement as of the effective date established by the Amended Rules, whether such action was commenced before or after the Effective Date of this Agreement. Should the Parties be unable to reach agreement with respect to
the applicability of such order or the resulting appropriate modifications to this Agreement, either party may invoke the Dispute Resolution provisions of this Agreement, it being the intent of the parties that this Agreement shall be brought into conformity with the then current obligations under the Act as determined by the Amended Rules. Embarq may charge rates to CLEC under this Agreement that are approved by the Commission in a generic cost proceeding, whether such action was commenced before or after the Effective Date of this Agreement, as of the effective date of the Commission decision.
4.4. In the event that as a result of any effective decision, order, or determination of any judicial or regulatory authority with jurisdiction over the subject matter hereof, Embarq determines that it is not required to furnish any service, facility, arrangement, or benefit required to be furnished or provided to CLEC under this Agreement, then Embarq may discontinue any service, facility, arrangement, or benefit (“Discontinued Arrangement”) to the extent permitted by any such decision, order, or determination by providing sixty (60) Days written notice to CLEC. Immediately upon provision of such written notice to CLEC, CLEC will be prohibited from ordering and Embarq will not provide new Discontinued Arrangements.
5. TERM AND TERMINATION
5.1. This Agreement shall be deemed effective upon the Effective Date first stated above, and continue for a period of two years until April 30, 2009 (“End Date”), unless earlier terminated in accordance with this Section 5, provided however that if CLEC has any outstanding past due obligations to Embarq or any of Embarq’s affiliates, this Agreement will not be effective until such time as any past due obligations with Embarq are paid in full. This agreement shall become binding upon execution by the Parties. No order or request for services under this Agreement shall be processed before the Effective Date, except as otherwise agreed to in writing by the Parties. No order or request for services under this Agreement shall be processed before CLEC has established a customer account with Embarq and has completed the Implementation Plan described in this Agreement.
5.2. In the event of either Party’s material breach of any of the terms or conditions hereof, including the failure to make any undisputed payment when due, the non-defaulting Party may immediately terminate this Agreement in whole or in part if the non-defaulting Party so advises the defaulting Party in writing of the event of the alleged default and the defaulting Party does not remedy the alleged default within sixty (60) Days after written notice thereof. The non-defaulting Party may pursue all available legal and equitable remedies for such breach.
5.3. Embarq may terminate this Agreement upon ten (10) Days notice if CLEC is not exchanging traffic with Embarq or has not submitted orders pursuant to this Agreement within one-hundred- eighty (180) Days of the Effective Date. In addition, Embarq reserves the right to terminate this Agreement immediately upon notice from the CLEC that it has ceased doing business in this state. In addition to notice from CLEC, Embarq may utilize any publicly available information in concluding that CLEC is no longer doing business in this state, and immediately terminate this Agreement.
5.4. Termination of this Agreement for any cause shall not release either Party from any liability which at the time of termination has already accrued to the other Party or which thereafter may accrue in respect to any act or omission prior to termination or from any obligation which is expressly stated in this Agreement to survive termination.
5.5. Notwithstanding the above, should Embarq sell or trade substantially all the assets in an exchange or group of exchanges that Embarq uses to provide Telecommunications Services, then Embarq may terminate this Agreement in whole or in part as to that particular exchange or group of exchanges upon sixty (60) Days prior written notice.
6. POST EXPIRATION INTERIM SERVICE ARRANGEMENTS
6.1. No later than one-hundred sixty (160) Days prior to the End Date, CLEC will provide Embarq notice to commence negotiations pursuant to Sections 251 and 252 of the Act for terms, conditions and rates for a successor agreement to be effective on or before the End Date.
6.2. In the event that this Agreement expires under Section 5.1, CLEC has submitted a notice to commence negotiations under Section 6.1, and the Parties have not executed a successor agreement at the time of expiration, provided the Parties are actually in arbitration or mediation before the Commission or FCC under § 252 of the Act or the Parties have a written agreement to continue negotiations under § 252, it is the intent of the Parties to provide in this Section for post- expiration interim service arrangements between the Parties so that service to their respective end users will not be interrupted should a new agreement not be consummated prior to the End Date. Therefore, except in the case of termination as a result of the events under Sections 5.2, 5.4, and 5.5, services that had been available under this Agreement, were ordered prior to the End Date and are actually in service as of the End Date may continue uninterrupted after the End Date at the written request of either Party only until the earlier to occur of (i) the Parties execute a successor agreement, (ii) the issuance of an order, whether a final non-appealable order or not, by the Commission or FCC, approving an agreement resulting from the resolution of the issues set forth in such arbitration or mediation request, or (iii) the first anniversary of the End Date.
6.3. In the event that on the End Date the Parties have not executed a successor agreement and
Section 6.2 does not apply or no longer applies, Embarq will continue to provide services pursuant to one of the following:
6.3.1. Such standard terms and conditions or tariffs approved by and made generally available by the Commission, if they exist; or
6.3.2. An existing agreement between Embarq and another carrier adopted by CLEC for the remaining term of that agreement. If CLEC fails to designate an agreement under this subsection, then Embarq may designate such agreement.
7. CHARGES, BILLING AND PAYMENT
7.1. In consideration of the services provided by Embarq under this Agreement, CLEC shall pay the charges set forth in Part C subject to the provisions of Section 4 hereof and subject to the dispute provisions provided herein. Additional billing procedures for charges incurred by CLEC hereunder are set forth in Part J.
7.2. Subject to the terms of this Agreement, the Parties shall pay invoices within thirty (30) Days from the bill date shown on the invoice.
7.2.1. For invoices not paid when due, late payment charges will be assessed under Section 7.4.
7.2.2. If the payment due date is a Saturday, Sunday or a designated bank holiday, payment shall be made the next business day.
7.2.3. If an invoice is not paid within forty-five (45) Days after the bill date, Embarq may suspend processing new orders and cancel any pending orders.
7.2.4. If the account remains delinquent sixty (60) Days after the bill date, Embarq will terminate all services under this Agreement.
7.3. If the CLEC disputes any charges shown on an invoice, the following billing dispute procedures are the exclusive means for challenging such charges, and the failure by CLEC to follow such
procedures will result in the suspension or termination of service for non-payment of invoiced amounts:
7.3.1. Any billing dispute must be submitted in writing, itemizing the particular charges that CLEC is challenging, and explaining in reasonable detail the specific grounds for disputing the validity or applicability of such charges.
7.3.2. Billing disputes must be submitted to the National Dispute Center on the billing dispute form designated by Embarq, along with any payment for undisputed charges that are shown on such invoice. The billing dispute form may be accompanied by any additional, relevant materials submitted by CLEC.
7.3.3. The payment due date of an invoice shall be suspended with respect to disputed amounts on such invoice, but only if a written, itemized dispute has been filed in compliance with Section 7.3 within thirty (30) Days of the bill date. Such payment due date for the disputed amounts shall remain suspended during negotiations between the Parties or pending a determination by the Commission under the dispute resolution provisions of Section 25.
7.3.4. Billing disputes that are submitted in a timely manner in compliance with Section 7.3 shall not have the effect of suspending the payment due date with respect to billed amounts that are not in dispute, notwithstanding the existence of a dispute with respect to other amounts billed on the same invoice.
7.3.5. Any billing dispute that is not submitted in a timely manner or which is not submitted in writing in compliance with Section 7.3 shall not be effective to suspend the payment due date for the disputed amount or to prevent late charges and possible suspension or termination of service for non-payment of billed amount in accordance with Section 7.2.
7.3.6. The failure to submit a written dispute in compliance with Section 7.3 within thirty (30) Days of a bill date shall not preclude CLEC from thereafter submitting a dispute or seeking a billing adjustment for any charges. Payment of amounts that are subsequently disputed or subject to adjustment shall not constitute or be deemed to represent a waiver of any such dispute, and the CLEC shall not be required to designate such payment as “conditional” or “under protest” in order to invoke the dispute resolution provisions of Section 25 with respect to such amounts.
7.4. Late payment charges on invoices not paid when due (or any portion thereof which is not subject to a timely filed dispute) will be assessed until the amount due is paid in full, and shall be calculated using a rate equal to the lesser of the following:
7.4.1. the total amount due times the highest rate (in decimal value) which may be levied by law for commercial transactions, compounded daily for the number of days from the payment due date to and including the date the customer actually makes the payment to Embarq, or
7.4.2. the total amount due multiplied by a factor of 0.000329 times the number of days which occurred between the payment due date and (including) the date CLEC actually makes the payment to Embarq.
7.5. Embarq shall credit CLEC for incorrect Connectivity Billing charges including without limitation: overcharges, services ordered or requested but not delivered, interrupted services, services of poor quality and installation problems if caused by Embarq. Such reimbursements shall be set forth in the appropriate section of the Connectivity Bill pursuant to CABS, or SECAB standards.
7.6. Embarq will bill CLEC for message provisioning and, if applicable, data tape charges related to exchange access records. Embarq will bill CLEC for the records at the rates on Table One. If CLEC requests additional copies of the monthly invoice, Embarq may also bill CLEC for the additional copies.
7.7. Embarq shall comply with various industry, OBF, and other standards referred to throughout this Agreement. Embarq will review any changes to industry standards, and implement the changes within the industry-defined window. Embarq will notify CLEC of any deviations to the standards.
7.8. Where Parties have established interconnection, Embarq and the CLEC agree to conform to MECAB and MECOD guidelines. They will exchange Billing Account Reference and Bill Account Cross Reference information and will coordinate Initial Billing Company/Subsequent Billing Company billing cycles. Embarq will provide CLEC the appropriate records to bill exchange access charges to the IXC. Embarq will capture EMI records for inward terminating calls and send them to CLEC, as appropriate, in a daily or other agreed upon interval, via and agreed upon media (e.g.: Connect Direct or CD Rom). Upon Embarq’s request, CLEC will provide Embarq the appropriate records to bill exchange access charges to the IXC. CLEC will capture EMI records for inward terminating calls and send them to Embarq, as appropriate, in a daily or other agreed upon interval, via and agreed upon media (e.g.: Connect Direct or CD Rom).
7.9. Embarq shall provide a single point of contact for handling of any data exchange questions or problems that may arise during the implementation and performance of the terms and conditions of this Agreement.
7.10. Revenue Protection. Embarq shall make available to CLEC, at Parity with what Embarq provides to itself, its Affiliates and other local telecommunications CLECs, all present and future fraud prevention or revenue protection features, including prevention, detection, or control functionality embedded within any of the Network Elements. These features include, but are not limited to screening codes, information digits assigned such as information digits ‘29’ and ‘70’ which indicate prison and COCOT pay phone originating line types respectively, call blocking of domestic, international, 800, 888, 900, NPA-976, 700, 500 and specific line numbers, and the capability to require end-user entry of an authorization code for dial tone. Embarq shall, when technically capable and consistent with the implementation schedule for Operations Support Systems (OSS), additionally provide partitioned access to fraud prevention, detection and control functionality within pertinent OSS.
7.11. Embarq reserves the right to secure the account with a suitable form of security deposit in accordance with Section 37.
8. AUDITS AND EXAMINATIONS
8.1. Each Party to this Agreement will be responsible for the accuracy and quality of its data as submitted to the other Party involved. Subject to each Party’s reasonable security requirements and except as may be otherwise specifically provided in this Agreement, either Party, at its own expense, may audit the other Party’s books, records and other documents directly related to billing and invoicing once in any twelve (12) month period for the purpose of evaluating the accuracy of the other Party’s billing and invoicing. "Audit" shall mean a comprehensive review of bills for services performed under this Agreement; "Examination" shall mean an inquiry into a specific element of or process related to bills for services performed under this Agreement. Either Party (the “Requesting Party”) may perform one (1) Audit per twelve (12) month period commencing with the Effective Date, with the assistance of the other Party, which will not be unreasonably withheld. The Audit period will include no more than the preceding twelve (12) month period as of the date of the Audit request. The Requesting Party may perform Examinations, as it deems necessary, with the assistance of the other Party, which will not be unreasonably withheld.
8.2. Upon thirty (30) Days written notice by the Requesting Party to Audited Party, Requesting Party shall have the right through its authorized representative to make an Audit, during normal business hours, of any records, accounts and processes which contain information bearing upon the billing and invoicing of the services provided under this Agreement. Within the above-described thirty
(30) Day period, the Parties shall reasonably agree upon the scope of the Audit or Examination, the documents and processes to be reviewed, and the time, place and manner in which the Audit or Examination shall be performed. Audited Party agrees to provide Audit or Examination support, including appropriate access to and use of Audited Party’s facilities (e.g.: conference rooms, telephones, copying machines).
8.3. Each party shall bear its own expenses in connection with the conduct of the Audit or Examination. The reasonable cost of special data extraction required by the Requesting Party to conduct the Audit or Examination will be paid for by the Requesting Party. For purposes of this Section 8.3, a "Special Data Extraction" shall mean the creation of an output record or informational report (from existing data files) that is not created in the normal course of business. If any program is developed to Requesting Party’s specifications and at Requesting Party’s expense, Requesting Party shall specify at the time of request whether the program is to be retained by Audited Party for reuse for any subsequent Audit or Examination.
8.4. Adjustments based on the audit findings may be applied to the twelve (12) month period included in the audit. Adjustments, credits or payments shall be made and any corrective action shall commence within thirty (30) Days from the requesting Party’s receipt of the final audit report to compensate for any errors or omissions which are disclosed by such Audit or Examination and are agreed to by the Parties. Interest shall be calculated in accordance with Section 7.4 above.
8.5. Neither such right to examine and audit nor the right to receive an adjustment shall be affected by any statement to the contrary appearing on checks or otherwise, unless such statement expressly waiving such right appears in writing, is signed by the authorized representative of the Party having such right and is delivered to the other Party in a manner sanctioned by this Agreement.
8.6. This Section shall survive expiration or termination of this Agreement for a period of one (1) year after expiration or termination of this Agreement.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. Any intellectual property which originates from or is developed by a Party shall remain in the exclusive ownership of that Party. Intellectual property includes, without limitation, patent, copyright, trade mark, trade secrets, and other proprietary rights. Each Party grants to the other party a limited license to its intellectual property solely to the extent necessary for the use of any facility or equipment (including software) or for the receipt of services as provided under this Agreement. Except for such limited license to use its intellectual property, no license in patent, copyright, trademark or trade secret, or other proprietary or intellectual property right now or hereafter owned, controlled or licensable by a Party, is granted to the other Party or shall be implied or arise by estoppel.
9.2. CLEC acknowledges that its right under this Agreement for Local Interconnection with Embarq's network and to unbundled and/or combine Embarq's Network Elements may be subject to or limited by intellectual property rights and contract rights of third parties. Embarq agrees to use its best efforts to obtain for CLEC, third party intellectual property rights, under commercially reasonable terms, to each unbundled Network Element necessary for CLEC to use such unbundled Network Element in the same manner as Embarq.
9.3. Embarq shall have no obligations to attempt to obtain for CLEC any third party intellectual property right(s) that would permit CLEC to use any unbundled Network Element in a different manner than used by Embarq.
9.4. To the extent not prohibited by a contract with the vendor of the Network Element sought by CLEC that contains intellectual property licenses, Embarq shall reveal to CLEC the name of the vendor, the intellectual property rights licensed to Embarq under the vendor contract and the terms of the contract (excluding cost terms). Embarq shall, at CLEC’s request, contact the vendor to attempt to obtain permission to reveal additional contract details to CLEC.
9.5. All costs associated with the extension of third party intellectual property rights to CLEC pursuant to Section 9.2, including the cost of the license extension itself and the costs associated with the effort to obtain the license, shall be part of the cost of providing the unbundled Network Element to which the intellectual property rights relate and apportioned to all requesting CLEC using that unbundled Network Element including Embarq.
9.6. Embarq hereby conveys no licenses to use such third party intellectual property rights and makes no warranties, express or implied, concerning CLEC’s rights with respect to such third party intellectual property rights and contract rights, including whether such rights will be violated by such Local Interconnection or unbundling and/or combining of Network Elements (including combining with CLEC’s use of other functions, facilities, products or services furnished under this Agreement). Any licenses or warranties for intellectual property rights associated with unbundled network elements are vendor licenses and warranties and are a part of the third party intellectual property rights Embarq agrees in Section 9.2 to use its best efforts to obtain.
10. LIMITATION OF LIABILITY
10.1. Neither Party, its parents, subsidiaries, affiliates, agents, servants or employees shall be liable for damages arising from errors, mistakes, omissions, interruptions, or delays in the course of establishing, furnishing, rearranging, moving, terminating, changing, providing or failing to provide services or facilities (including the obtaining or furnishing of information with respect thereof or with respect to users of the services or facilities) in the absence of willful misconduct.
10.2. Notwithstanding the foregoing, in no event shall Embarq’s liability to CLEC for a service outage exceed an amount equal to the proportionate charge for the service(s) or unbundled element(s) provided for the period during which the service was affected.
10.3. Neither Party shall be responsible to the other for any indirect, special, consequential or punitive damages, including (without limitation) damages for 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”), whether arising in contract or tort except that the foregoing shall not limit a Party’s obligation under Section 11 to indemnify, defend, and hold the other Party harmless against amounts payable to third parties.
10.4. EMBARQ SHALL BE LIABLE FOR DAMAGE TO OR DESTRUCTION OF CLEC’S EQUIPMENT AND OTHER PREMISES ONLY IF SUCH DAMAGE OR DESTRUCTION IS CAUSED BY EMBARQ’S SOLE NEGLIGENCE OR WILLFUL MISCONDUCT.
11.1. Each Party agrees to indemnify and hold harmless the other Party from and against claims by third parties for damage to tangible personal or real property and/or personal injuries to the extent caused by the negligence or willful misconduct or omission of the indemnifying Party.
11.2. CLEC shall indemnify and hold harmless Embarq from all claims by CLEC’s subscribers.
11.3. Embarq shall indemnify and hold harmless CLEC from all claims by Embarq’s subscribers.
11.4. The indemnifying Party under this Section agrees to defend any suit brought against the other Party either individually or jointly with the indemnified Party for any such loss, injury, liability, claim or demand.
11.5. The indemnified Party agrees to notify the other Party promptly, in writing, of any written claims, lawsuits, or demands for which it is claimed that the indemnifying Party is responsible under this Section and to cooperate in every reasonable way to facilitate defense or settlement of claims.
11.6. The indemnifying Party shall have complete control over defense of the case and over the terms of any proposed settlement or compromise thereof. The indemnifying Party shall not be liable under this Section for settlement by the indemnified Party of any claim, lawsuit, or demand, if the indemnifying Party has not approved the settlement in advance, unless the indemnifying Party has had the defense of the claim, lawsuit, or demand tendered to it in writing and has failed to promptly assume such defense. In the event of such failure to assume defense, the indemnifying Party shall be liable for any reasonable settlement made by the indemnified Party without approval of the indemnifying Party.
11.7. When the lines or services of other companies and CLECs are used in establishing connections to and/or from points not reached by a Party’s lines, neither Party shall be liable for any act or omission of the other companies or carriers.
11.8. In addition to its indemnity obligations hereunder, each Party shall, to the extent allowed by law or Commission Order, provide, in its tariffs and contracts with its subscribers that relate to any Telecommunications Services provided or contemplated under this Agreement, that in no case shall such Party or any of its agents, contractors or others retained by such Party be liable to any subscriber or third party for
11.8.1. 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 subscriber for the service(s) or function(s) that gave rise to such loss, and
11.8.2. Consequential Damages (as defined in Section 10 above).
11.9 If CLEC has physical collocations under this Agreement, CLEC shall also indemnify and hold Embarq harmless from any and all claims arising from:
11.9.1 CLEC’s use of the Collocation Space;
11.9.2 the conduct of CLEC’s business or from any activity, work or things done, permitted or suffered by CLEC in or about the Collocation Space or elsewhere;
11.9.3 any and all claims arising from any breach or default in the performance of any obligation on CLEC's part to be performed under the terms of this Agreement; and
11.9.4 any negligence of the CLEC, or any of CLEC's agents, and fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon.
11.9.5 If any action or proceeding is brought against Embarq by reason of any such claim, CLEC, upon notice from Embarq, shall defend same at CLEC’s expense employing counsel satisfactory to Embarq.
11.10 ILEC shall at all times indemnify, defend, save and hold harmless Embarq from any claims, liens, demands, charges, encumbrances, litigation and judgments arising directly or indirectly out of any use, occupancy or activity of CLEC, or out of any work performed, material furnished, or obligations incurred by CLEC in, upon or otherwise in connection with the Collocation Space. CLEC shall give Embarq written notice at least ten (10) Business Days prior to the
commencement of any such work on the Collocation Space in order to afford Embarq the opportunity of filing appropriate notices of non-responsibility. However, failure by Embarq to give notice does not reduce CLEC's liability under this Section.
11.11 If any claim or lien is filed against the Collocation Space, or any action or proceeding is instituted affecting the title to the Collocation Space, CLEC shall give Embarq written notice thereof as soon as CLEC obtains such knowledge.
11.12 CLEC shall, at its expense, within thirty (30) Days after filing of any lien of record, obtain the discharge and release thereof or post a bond in an amount sufficient to accomplish such discharge and release. Nothing contained herein shall prevent Embarq, at the cost and for the account of CLEC, from obtaining such discharge and release if CLEC fails or refuses to do the same within the thirty-day period.
11.13 If CLEC has first discharged the lien as provided by law, CLEC may, at CLEC’s expense, contest any mechanic's lien in any manner permitted by law.
12.1. During the term of this Agreement, CLEC shall carry, and shall cause any subcontractors to carry, with financially reputable insurers which are licensed to do business in all jurisdictions where any property is located, not less than the following insurance:
12.2. Commercial General Liability with limits of not less than $1,000,000 combined single limit per occurrence and aggregate for bodily injury, property damage and personal and advertising injury liability insurance to include coverage for contractual and products/completed operations liability, naming Embarq as additional insured;
12.3. Business Auto liability, including all owned, non-owned and hired automobiles, in an amount of not less than $1,000,000 combined single limit per accident for bodily injury and property damage liability, naming Embarq as additional insured;
12.4. Workers Compensation as provided for in the jurisdiction where the Property is located, with an Employer's Liability limit of not less than $500,000 per accident or disease; and
12.5. Umbrella or excess liability in an amount not less than $5,000,000 per occurrence and aggregate in excess of the above-referenced Commercial General, Business Auto and Employer's Liability, naming Embarq as additional insured; and
12.6. “All Risk” property insurance on a full replacement cost basis insuring CLEC’s property situated on or within the Property, naming Embarq as loss payee. CLEC may elect to insure business interruption and contingent business interruption, as it is agreed that Embarq has no liability for loss of profit or revenues should an interruption of service occur.
12.7. Nothing contained in this Section shall limit CLEC's liability to Embarq to the limits of insurance certified or carried.
12.8. All policies required of the CLEC shall contain evidence of the insurer’s waiver of the right of subrogation against Embarq for any insured loss covered thereunder. All policies of insurance shall be written as primary policies and not contributing with or in excess of the coverage, if any, that Embarq may carry.
12.9. CLEC shall furnish to Embarq a certificate or certificates of insurance, satisfactory in form and content to Embarq, evidencing that the above coverage is in force and has been endorsed to guarantee that the coverage will not be cancelled without first giving at least thirty (30) days prior written notice to Embarq.
13.1. CLEC shall provide the exclusive interface to CLEC subscribers, except as CLEC shall otherwise specify for the reporting of trouble or other matters identified by CLEC for which Embarq may directly communicate with CLEC subscribers. In those instances where CLEC requests that Embarq personnel interface with CLEC subscribers, such Embarq personnel shall inform the CLEC subscribers that they are representing CLEC, or such brand as CLEC may specify.
13.2. Other business materials furnished by Embarq to CLEC subscribers shall bear no corporate name, logo, trademark or tradename.
13.3. Except as specifically permitted by a Party, in no event shall either Party provide information to the other Party’s subscribers about the other Party or the other Party’s products or services.
13.4. Embarq shall share pertinent details of Embarq’s training approaches related to branding with CLEC to be used by Embarq to assure that Embarq meets the branding requirements agreed to by the Parties.
13.5. This Section shall not confer on either Party any rights to the service marks, trademarks and/or trade names owned by or used in connection with services by the other Party, except as expressly permitted in writing by the other Party.
14.1. Except as otherwise provided herein, all rights of termination, cancellation or other remedies prescribed in this Agreement, or otherwise available, are cumulative and are not intended to be exclusive of other remedies to which the injured Party may be entitled in case of any breach or threatened breach by the other Party of any provision of this Agreement, and use of one or more remedies shall not bar use of any other remedy for the purpose of enforcing the provisions of this Agreement.
15. CONFIDENTIALITY AND PUBLICITY
15.1. All information which is disclosed by one Party (“Disclosing Party”) to the other (“Recipient”) in connection with this Agreement, or acquired in the course of performance of this Agreement, shall be deemed confidential and proprietary to the Disclosing Party and subject to this Agreement, such information includes but is not limited to, orders for services, usage information in any form, and CPNI as that term is defined by the Act and the rules and regulations of the FCC (“Confidential Information”).
15.2. During the term of this Agreement, and for a period of five (5) year thereafter, Recipient shall
15.2.1. use Confidential Information only for the purpose of performing under this Agreement,
15.2.2. hold Confidential Information in confidence and disclose it only to employees or agents who have a need to know it in order to perform under this Agreement, and
15.2.3. safeguard Confidential Information from unauthorized use or Disclosure using no less than the degree of care with which Recipient safeguards its own Confidential Information.
15.3. Recipient shall have no obligation to safeguard Confidential Information
15.3.1. which was in the Recipient’s possession free of restriction prior to its receipt from Disclosing Party,
15.3.2. which becomes publicly known or available through no breach of this Agreement by Recipient,
15.3.3. which is rightfully acquired by Recipient free of restrictions on its Disclosure, or
15.3.4. which is independently developed by personnel of Recipient to whom the Disclosing Party’s Confidential Information had not been previously disclosed.
15.4. Recipient may disclose Confidential Information if required by law, a court, or governmental agency, if the Disclosing Party has been notified of the requirement promptly after Recipient becomes aware of the requirement, and the Recipient undertakes all lawful measures to avoid disclosing such information until Disclosing Party has had reasonable time to obtain a protective order. Recipient will comply with any protective order that covers the Confidential Information to be disclosed.
15.5. Each Party agrees that in the event of a breach of this Section 15 by Recipient or its representatives, Disclosing Party shall be entitled to equitable relief, including injunctive relief and specific performance. Such remedies shall not be exclusive, but shall be in addition to all other remedies available at law or in equity.
15.6. Unless otherwise agreed, neither Party shall publish or use the other Party's logo, trademark, service mark, name, language, pictures, symbols or words from which the other Party's name may reasonably be inferred or implied in any product, service, advertisement, promotion, or any other publicity matter, except that nothing in this paragraph shall prohibit a Party from engaging in valid comparative advertising. This Section 15.6 shall confer no rights on a Party to the service marks, trademarks and trade names owned or used in connection with services by the other Party or its Affiliates, except as expressly permitted by the other Party.
15.7. Neither Party shall produce, publish, or distribute any press release nor other publicity referring to the other Party or its Affiliates, or referring to this Agreement, without the prior written approval of the other Party. Each party shall obtain the other Party’s prior approval before discussing this Agreement in any press or media interviews. In no event shall either Party mischaracterize the contents of this Agreement in any public statement or in any representation to a governmental entity or member thereof.
15.8. Except as otherwise expressly provided in this Section 15, nothing herein shall be construed as limiting the rights of either Party with respect to its customer information under any applicable law, including without limitation § 222 of the Act.
16. DISCLAIMER OF WARRANTIES
16.1. EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO QUALITY, FUNCTIONALITY OR CHARACTERISTICS OF THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR STATEMENT MADE BY EITHER PARTY OR ANY OF ITS AGENTS OR EMPLOYEES, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, ANY SPECIFICATIONS, DESCRIPTIONS OR STATEMENTS PROVIDED OR MADE SHALL BE BINDING UPON EITHER PARTY AS A WARRANTY.
17. ASSIGNMENT AND SUBCONTRACT
17.1. If any Affiliate of either Party succeeds to that portion of the business of such Party that is responsible for, or entitled to, any rights, obligations, duties, or other interests under this Agreement, such Affiliate may succeed to those rights, obligations, duties, and interest of such Party under this Agreement. In the event of any such succession hereunder, the successor shall expressly undertake in writing to the other Party the performance and liability for those obligations and duties as to which it is succeeding a Party to this Agreement. Thereafter, the successor Party shall be deemed CLEC or Embarq and the original Party shall be relieved of such obligations and duties, except for matters arising out of events occurring prior to the date of such undertaking.
17.2. Except as provided in Section 17.1, any assignment of this Agreement or of the work to be performed, in whole or in part, or of any other interest of a Party hereunder, without the other Party’s written consent, which consent shall not be unreasonably withheld or delayed, shall be void.
18. GOVERNING LAW
18.1. This Agreement shall be governed by and construed in accordance with the Act, the FCC’s Rules and Regulations and orders of the Commission, except insofar as state law may control any aspect of this Agreement, in which case the domestic laws of the Commission’s state, without regard to its conflicts of laws principles, shall govern.
19. RELATIONSHIP OF PARTIES
19.1. It is the intention of the Parties that each Party shall be an independent contractor and nothing contained herein shall constitute the Parties as joint venturers, partners, employees or agents of one another, and neither Party shall have the right or power to bind or obligate the other.
20. NO THIRD PARTY BENEFICIARIES
20.1. The provisions of this Agreement are for the benefit of the Parties hereto and not for any other person, and this Agreement shall not provide any person not a party hereto with any remedy, claim, liability, reimbursement, right of action, or other right in excess of those existing without reference hereto. This shall not be construed to prevent CLEC from providing its Telecommunications Services to other carriers.
21.1. Except as otherwise provided herein, all notices or other communication hereunder shall be deemed to have been duly given when made in writing and delivered in person or deposited in the United States mail, certified mail, postage prepaid, return receipt requested and addressed as follows:
If to “CLEC”: If to Embarq:
Managed Services, Inc. 672 Spyglass Way
Rock Hill, South Carolina 29730
Director - Wholesale Markets Embarq
9300 Metcalf Avenue Overland Park, KS 66212
With a copy to: With a copy to:
21.2. If delivery, other than certified mail, return receipt requested, is used to give notice, a receipt of such delivery shall be obtained and the notice shall be effective when received. If delivery via certified mail, return receipt requested, is used, notice shall be effective when sent. The address to which notices or communications may be given to either Party may be changed by written notice given by such Party to the other pursuant to this Section.
22.1. No waiver of any provisions of this Agreement and no consent to any default under this Agreement shall be effective unless the same shall be in writing and properly executed by or on behalf of the Party against whom such waiver or consent is claimed.
22.2. No course of dealing or failure of any Party to strictly enforce any term, right, or condition of this Agreement in any instance shall be construed as a general waiver or relinquishment of such term, right or condition.
22.3. Waiver by either Party of any default by the other Party shall not be deemed a waiver of any other default.
23.1. Termination of this Agreement, or any part hereof, for any cause shall not release either Party from any liability which at the time of termination had already accrued to the other Party or which thereafter accrues in any respect to any act or omission occurring prior to the termination or from an obligation which is expressly stated in this Agreement to survive termination including but not limited to Sections 7, 8, 9, 10, 11, 15, 20, 22, and 25.
24. FORCE MAJEURE
24.1. Neither Party shall be held 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, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts, strikes, work stoppage affecting a supplier or unusually severe weather. No delay or other failure to perform shall be excused pursuant to this Section 24 unless delay or failure and consequences thereof are beyond the control and without the fault or negligence of the Party claiming excusable delay or other failure to perform. Subject to Sections 4.4, 5.2, 5.2, and 5.5 hereof, in the event of any such excused delay in the performance of a Party's obligation(s) under this Agreement, the due date for the performance of the original obligation(s) shall be extended by a term equal to the time lost by reason of the delay. In the event of such delay, the delayed Party shall perform its obligations at a performance level no less than that which it uses for its own operations. In the event of such performance delay or failure by Embarq, Embarq agrees to resume performance in a nondiscriminatory manner and not favor its own provision of Telecommunications Services above that of CLEC.
25. DISPUTE RESOLUTION
25.1. The Parties recognize and agree that the Commission has continuing jurisdiction to implement and enforce all terms and conditions of this Agreement, except those services in Part I (non-251 services). Accordingly, the Parties agree that any dispute arising out of or relating to this Agreement that the Parties cannot resolve, other than Part I (non-251 services), may be submitted to the Commission for resolution, in the manner provided for herein. The dispute resolution provisions of this Section shall not preclude the Parties from seeking relief available in any other forum.
25.2. A Party may not submit a dispute to the Commission for resolution unless at least sixty (60) days have elapsed after the Party asserting the dispute has given written notice of such dispute to the other Party. Such notice must explain in reasonable detail the specific circumstances and grounds for each disputed item, which shall include the specific information required in Section 7.3 for billing disputes. If a Party gives notice of a billing dispute more than thirty (30) Days after the billing date and has not paid the disputed amounts by the payment due date, then the notice of such dispute shall be deemed to have been given thirty (30) Days after the billing date for purposes of calculating the time period before such dispute may be submitted to the Commission.
25.3. The Parties shall meet or confer 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. The specific format for such discussions will be left to the discretion of the Parties, provided, however, that all reasonable requests for relevant, non-privileged, information made by one Party to the other Party shall be honored, and provided that the following terms and conditions shall apply:
25.3.1. If Embarq provides written notice to the CLEC that a billing dispute has been denied, stating the grounds for such determination, then the CLEC shall have ten (10) Days in which to either pay the disputed amounts or to send written notice to the National Dispute Center advising that the CLEC disagrees with the determination by Embarq, and such notice may be accompanied by any additional, relevant materials submitted by CLEC. Failure by the CLEC to make a timely response to a notice of denial by Embarq shall result in lifting the suspension of the payment due date for such disputed invoice, and the possible assessment of late charges and suspension or termination of service for non-payment of billed amount in accordance with Section 7.2.
25.3.2. Failure by the CLEC to make a timely response to a notice of denial by Embarq shall also preclude the CLEC from thereafter requesting an escalation of the same dispute under Section 25.4, although the CLEC may file a petition in compliance with Section 25.5.
25.4. If the Parties are unable to resolve the dispute in the normal course of business within thirty (30) Days after delivery of notice of the Dispute, then upon the request of either Party, the dispute shall be escalated to other representatives of each Party that have authority to settle the dispute, and such escalation may be repeated every thirty (30) Days during which negotiations continue. Referral of a dispute by a Party to its legal counsel shall be considered an escalation for purposes of this paragraph.
25.5. If the Parties are unable to resolve the dispute within sixty (60) Days after delivery of the initial notice of the dispute, then either Party may file a petition or complaint with the Commission seeking resolution of the dispute. The petition or complaint shall include a statement that both Parties have agreed to request an expedited resolution by the Commission within sixty (60) Days from the date on which the petition or complaint was filed with the Commission.
25.6. If the Commission appoints an expert(s) or other facilitator(s) to assist in its decision making, each Party shall pay half of the fees and expenses so incurred.
25.7. During the Commission proceeding each Party shall continue to perform its obligations under this Agreement provided, however, that neither Party shall be required to act in any unlawful fashion.
25.8. A dispute which has been resolved by a written settlement agreement between the Parties or pursuant to a determination by the Commission may not be resubmitted under the dispute resolution process.
26. COOPERATION ON FRAUD
26.1. The Parties agree that they shall cooperate with one another to investigate, minimize and take corrective action in cases of fraud. The Parties’ fraud minimization procedures are to be cost effective and implemented so as not to unduly burden or harm one party as compared to the other.
27.1. For purposes of this Section, the terms “taxes” and “fees” shall include but not be limited to federal, state or local sales, use, excise, gross receipts or other taxes or tax-like fees of whatever nature and however designated (including Tariff surcharges and any fees, charges or other payments, contractual or otherwise, for the use of public streets or rights of way, whether designated as franchise fees or otherwise) imposed, or sought to be imposed, on or with respect to the services furnished hereunder or measured by the charges or payments therefore, excluding any taxes levied on income.
27.2. Taxes and Fees Imposed Directly On Either Providing Party or Purchasing Party.
27.2.1. Taxes and fees imposed on the providing Party, which are not permitted or required to be passed on by the providing Party to its customer, shall be borne and paid by the providing Party.
27.2.2. Taxes and fees imposed on the purchasing Party, which are not required to be collected and/or remitted by the providing Party, shall be borne and paid by the purchasing Party.
27.3. Taxes and Fees Imposed on Purchasing Party but Collected And Remitted By Providing Party.
27.3.1. Taxes and fees imposed on the purchasing Party shall be borne by the purchasing Party, even if the obligation to collect and/or remit such taxes or fees is placed on the providing Party.
27.3.2. To the extent permitted by applicable law, any such taxes and/or fees shall be shown as separate items on applicable billing documents between the Parties. Notwithstanding the foregoing, the purchasing Party shall remain liable for any such taxes and fees regardless of whether they are actually billed by the providing Party at the time that the respective service is billed.
27.3.3. If the purchasing Party determines that in its opinion any such taxes or fees are not payable, the providing Party shall not bill such taxes or fees to the purchasing Party if the purchasing Party provides written certification, reasonably satisfactory to the providing Party, stating that it is exempt or otherwise not subject to the tax or fee, setting forth the basis therefore, and satisfying any other requirements under applicable law. If any authority seeks to collect any such tax or fee that the purchasing Party has determined and certified not to be payable, or any such tax or fee that was not billed by the providing Party, the purchasing Party may contest the same in good faith, at its own expense. In any such contest, the purchasing Party shall promptly furnish the providing Party with copies of all filings in any proceeding, protest, or legal challenge, all rulings issued in connection therewith, and all correspondence between the purchasing Party and the taxing authority.
27.3.4. In the event that all or any portion of an amount sought to be collected must be paid in order to contest the imposition of any such tax or fee, or to avoid the existence of a lien on the assets of the providing Party during the pendency of such contest, the purchasing Party shall be responsible for such payment and shall be entitled to the benefit of any refund or recovery.
27.3.5. If it is ultimately determined that any additional amount of such a tax or fee is due to the imposing authority, the purchasing Party shall pay such additional amount, including any interest and penalties thereon.
27.3.6. Notwithstanding any provision to the contrary, the purchasing Party shall protect, indemnify and hold harmless (and defend at the purchasing Party’s expense) the providing Party from and against any such tax or fee, interest or penalties thereon, or other charges or payable expenses (including reasonable attorney fees) with respect thereto, which are incurred by the providing Party in connection with any claim for or contest of any such tax or fee.
27.3.7. Each Party shall notify the other Party in writing of any assessment, proposed assessment or other claim for any additional amount of such a tax or fee by a taxing authority; such notice to be provided, if possible, at least ten (10) Days prior to the date by which a response, protest or other appeal must be filed, but in no event later than thirty (30) Days after receipt of such assessment, proposed assessment or claim.
27.4. Taxes and Fees Imposed on Providing Party But Passed On To Purchasing Party.
27.4.1. Taxes and fees imposed on the providing Party, which are permitted or required to be passed on by the providing Party to its customer, shall be borne by the purchasing Party.
27.4.2. To the extent permitted by applicable law, any such taxes and/or fees shall be shown as separate items on applicable billing documents between the Parties. Notwithstanding the foregoing, the purchasing Party shall remain liable for any such taxes and fees regardless of whether they are actually billed by the providing Party at the time that the respective service is billed.
27.4.3. If the purchasing Party disagrees with the providing Party’s determination as to the application or basis for any such tax or fee, the Parties shall consult with respect to the imposition and billing of such tax or fee. Notwithstanding the foregoing, the providing Party shall retain ultimate responsibility for determining whether and to what extent any such taxes or fees are applicable, and the purchasing Party shall abide by such determination and pay such taxes or fees to the providing Party. The providing Party shall further retain ultimate responsibility for determining whether and how to contest the imposition of such taxes and fees; provided, however, that any such contest undertaken at the request of the purchasing Party shall be at the purchasing Party’s expense.
27.4.4. In the event that all or any portion of an amount sought to be collected must be paid in order to contest the imposition of any such tax or fee, or to avoid the existence of a lien on the assets of the providing Party during the pendency of such contest, the purchasing Party shall be responsible for such payment and shall be entitled to the benefit of any refund or recovery.
27.4.5. If it is ultimately determined that any additional amount of such a tax or fee is due to the imposing authority, the purchasing Party shall pay such additional amount, including any interest and penalties thereon.
27.4.6. Notwithstanding any provision to the contrary, the purchasing Party shall protect, indemnify and hold harmless (and defend at the purchasing Party’s expense) the providing Party from and against any such tax or fee, interest or penalties thereon, or other reasonable charges or payable expenses (including reasonable attorneys’ fees) with respect thereto, which are incurred by the providing Party in connection with any claim for or contest of any such tax or fee.
27.4.7. Each Party shall notify the other Party in writing of any assessment, proposed assessment or other claim for any additional amount of such a tax or fee by a taxing authority; such notice to be provided, if possible, at least ten (10) Days prior to the date by which a response, protest or other appeal must be filed, but in no event later than thirty (30) Days after receipt of such assessment, proposed assessment or claim.
27.5. In any contest of a tax or fee by one Party, the other Party shall cooperate fully by providing records, testimony and such additional information or assistance as may reasonably be necessary to pursue the contest. Further, the other Party shall be reimbursed for any reasonable and necessary out-of-pocket copying and travel expenses incurred in assisting in such contest.
27.6. To the extent a sale is claimed to be for resale and thus subject to tax exemption, the purchasing Party shall furnish the providing Party a proper resale tax exemption certificate as authorized or required by statute or regulation of the jurisdiction providing said resale tax exemption. If Applicable Law excludes or exempts a purchase of services under this Agreement from a Tax, but does not also provide an exemption procedure, then the providing Party will not collect such Tax if the purchasing Party furnishes the providing Party with a letter or other evidence of exemption, reasonably satisfactory to the providing Party, claiming an exemption and identifying the Applicable Law that both allows such exemption and does not require an exemption certificate. If the exemption is later found to be invalid by the applicable jurisdiction, then the purchasing Party shall pay any tax, interest and/or penalty that is determined to be due, and shall be responsible for any costs incurred by the providing Party, including but not limited to reasonable attorneys’ fees.
28. AMENDMENTS AND MODIFICATIONS
28.1. No provision of this Agreement shall be deemed waived, amended or modified by either Party unless such a waiver, amendment or modification is in writing, dated, and signed by both Parties.
29.1. Subject to Section 4.2, if any part of this Agreement is held to be invalid, void or unenforceable for any reason, such invalidity will affect only the portion of this Agreement which is invalid. In all other respects this Agreement will stand as if such invalid provision had not been a part thereof, and the remainder of the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
30. HEADINGS NOT CONTROLLING
30.1. The headings and numbering of Sections and Parts in this Agreement are for convenience only and shall not be construed to define or limit any of the terms herein or affect the meaning or interpretation of this Agreement.
31. ENTIRE AGREEMENT
31.1. This Agreement, including all Parts and subordinate documents attached hereto or referenced herein, all of which are hereby incorporated by reference herein, subject only to the terms of any applicable Tariff on file with the state Commission or the FCC, constitute the entire matter thereof, and supersede all prior oral or written agreements, representations, statements, negotiations, understandings, proposals, and undertakings with respect to the subject matter thereof.
32. SUCCESSORS AND ASSIGNS
32.1. Subject to the terms of this Agreement, Embarq and CLEC agree this Agreement shall be binding upon, and inure to the benefit of, the Parties hereto and their respective successors and permitted assigns.
33. IMPLEMENTATION PLAN
33.1. This Agreement sets forth the overall standards of performance for the services, processes, and systems capabilities that the Parties will provide to each other, and the intervals at which those services, processes and capabilities will be provided. The Parties understand that the arrangements and provision of services described in this Agreement shall require technical and operational coordination between the Parties. Accordingly, the Parties agree to form a team (the “Implementation Team”) which shall develop and identify those processes, guidelines, specifications, standards and additional terms and conditions necessary to support and satisfy the standards set forth in this Agreement and implement each Party's obligations hereunder.
33.2. Dispute Resolution. If the Implementation Team is unable to agree upon any of the matters to be included in the Implementation Plan, then either Party may invoke the procedures set forth in Part B Section 25.
34. FEDERAL JURISDICTIONAL AREAS
34.1. Article 1, § 8, Clause 17 of the United States Constitution provides the authority to Congress to exercise exclusive jurisdiction over areas and structures used for military purposes (Federal Enclaves). Thus, Telecommunications Services to such Federal Enclaves are not subject to the jurisdiction of the Commission. The Parties agree that Services provided within Federal Enclaves are not within the scope of this Agreement. To the extent Embarq has contracts with federal entities that limit or prohibit the ability of CLEC to provide resale or UNEs such contract will govern Telecommunications Services on such Federal Enclave. If the contract with the federal entity provides for the resale or provision of UNEs to provide service on the Federal Enclave, Embarq will provide CLEC with information regarding the provision of service on the Federal Enclave.
PART C – GENERAL PRINCIPLES
35. USE OF FACILITIES
35.1. In situations where a competitive LEC has the use of the facilities (i.e., Local Loop) to a specific customer premise, either through resale of local service or the lease of the Local Loop as an Unbundled Network Element, and Embarq receives a good faith request for service from a customer at the same premise or from another carrier with the appropriate customer authorization, the procedures below will apply.
35.1.1. Embarq will process such orders and provision services consistent with the terms contained in Section 71, of this Agreement.
35.1.2. Where CLEC is using a single facility to provide service to multiple end user customers, Embarq will not disconnect that facility as a result of the following procedures.
35.1.3. Embarq will follow methods prescribed by the FCC and any applicable state regulation for carrier change verification.
35.1.4. Customer with Existing Service Changing Local Service Provider:
In situations where a competitive LEC submits an order for an end user customer that is changing local service providers for existing service, and is not adding service (i.e., an additional line), Embarq will process the service request without delay, and provide the losing competitive LEC a customer loss notification consistent with industry standards.
35.1.5. Customer with Existing Service Adding New Service
In situations where an order is submitted for an end user customer adding service to existing service (i.e., an additional line), the order should be marked as an additional line and existing facilities will not be affected.
35.1.6. Customer Requesting New Service where Previous Customer has Abandoned Service
(a) The following applies in the case where an end user customer vacates premises without notifying the local service provider and a new end user customer moves into the vacated premises and orders new service from a local service provider and neither Embarq nor the previous local service provider are aware that the original end user customer has abandoned the service in place.
(b) When a carrier requests service at a location and marks the order as abandoned and CLEC is the previous local service provider, Embarq shall notify CLEC via fax that it has had a request for service at the premise location that is currently being served by CLEC;
(c) If available to Embarq, Embarq shall include the name and address of the party receiving service at such locations, but at a minimum shall provide local service address location information;
(d) If CLEC does not respond within twenty-four (24) hours (excluding weekends and holidays) after receiving Embarq’s notification or if CLEC responds relinquishing the facilities, Embarq shall be free to use the
facilities in question and Embarq shall issue a disconnect order with respect to the CLEC service at that location. If CLEC responds stating that the service is working and should not be disconnected, Embarq will notify the carrier ordering service and request verification of the address and location or the submission of an order for an additional line.
36. PRICE SCHEDULE
36.1. All prices under this Agreement are set forth in the attachments designated Table One and Table Two of this Agreement are hereby incorporated into, and made a part of, this Agreement. If this Agreement provides for a service that does not have a corresponding rate in Table One or Table Two, or is not subject to Section Error! Reference source not found., Embarq will develop a rate consistent with Section Error! Reference source not found..
36.2. Subject to the provisions of Part B, Section 4 of this Agreement, all rates provided under this Agreement shall remain in effect for the term of this Agreement.
36.3. Local Service Resale
The rates that CLEC shall pay to Embarq for Local Resale are as set forth in Table One of this Agreement and shall be applied consistent with the provisions of Part D of this Agreement.
36.4. Unbundled Network Elements
The charges that CLEC shall pay to Embarq for Unbundled Network Elements are set forth in Table One of this Agreement.
The charges that CLEC shall pay to Embarq for Collocation are set forth in Table Two of this Agreement.
36.6. Call Related Databases
The charges that CLEC shall pay to Embarq for Call Related Databases purchased pursuant to Part J are set forth in Table One of this Agreement.
37. SECURITY DEPOSIT
37.1. Embarq reserves the right to secure the account with a suitable security deposit in the form and amounts set forth herein.
37.2. Security deposits shall take the form of cash or cash equivalent, an irrevocable letter of credit or other form of security acceptable to Embarq.
37.3. If a security deposit is required on a new account, CLEC will remit such security deposit prior to inauguration of service. If a security deposit is requested for an existing account, payment of the security deposit will be made prior to acceptance by Embarq of additional orders for service.
37.4. Security deposits shall be in an amount equal to two (2) months' estimated billings as calculated by Embarq, or twice the most recent month's invoices from Embarq for existing accounts. All security deposits will be subject to a minimum deposit level of $10,000.
37.5. The fact that a security deposit has been made in no way relieves CLEC from complying with Embarq's regulations as to advance payments and the prompt payment of bills on presentation, nor is it a waiver or modification of the regular practices of Embarq for the discontinuance of service for non-payment of any sums due Embarq.
37.6. Embarq may increase the security deposit requirements when gross monthly billing has increased beyond the level initially used to determine the security deposit. If payment of the additional security deposit amount is not made within thirty (30) days of the request, Embarq may stop processing orders for service and CLEC will be considered in breach of the Agreement.
37.7. Any security deposit shall be held by Embarq as a guarantee of payment of any charges for services billed to CLEC pursuant to this Agreement or in connection with any other services provided to CLEC by Embarq. Embarq may exercise its right to credit any cash deposit to CLEC's account, or to demand payment from the issuing bank or bonding company of any irrevocable bank letter of credit, upon the occurrence of any one of the following events:
37.7.1. when CLEC’s undisputed balances due to Embarq are more than thirty (30) Days past due; or
37.7.2. when CLEC files for protection under the bankruptcy laws; or
37.7.3. when an involuntary petition in bankruptcy is filed against CLEC and is not dismissed within sixty (60) Days;
37.7.4. when this Agreement expires or terminates;
37.7.5. any letter of credit issued hereunder or any bank issuing a letter of credit hereunder (each, a “Letter of Credit Bank”) fails to meet the terms, conditions, and requirements set forth below in this Section; ; or
37.7.6. CLEC fails to provide Embarq with a replacement letter of credit on the terms set forth herein at least ten (10) business days prior to the expiration of any letter of credit issued to Embarq hereunder.
37.8. If any security deposit held by Embarq is applied as a credit toward payment of CLEC’s balances due to Embarq, then Embarq may require the CLEC to provide a new deposit. If payment of the new deposit is not made within thirty (30) days of the request, Embarq may stop processing orders for service and CLEC will be considered in breach of the Agreement.
37.9. Any security deposit may be held during the continuance of the service as security for the payment of any and all amounts accruing for the service. No interest will accrue or be paid on deposits.
37.10. Any letter of credit issued to Embarq hereunder must meet the following requirements:
37.10.1. The bank issuing any letter of credit hereunder (the “Letter of Credit Bank”) must maintain a minimum credit rating of A (by Standard & Poor’s) or A2 (by Moody’s). If CLEC proposes that the letter of credit be issued by a bank that is not so rated by Standard & Poor’s or Moody’s, then CLEC must obtain the prior written approval by Embarq to use such bank as the Letter of Credit Bank.
37.10.2. The original letter of credit shall be in such form and on terms that are acceptable to Embarq and must include an automatic one-year renewal extension.
37.10.3. If CLEC receives notice from the Letter of Credit Bank of any non-renewal of a letter of credit issued hereunder, then CLEC shall promptly notify Embarq of such notice of non-renewal. Not later than ten (10) business days prior to the expiration of the letter of credit, CLEC shall provide Embarq a replacement letter of credit on substantially identical terms to the existing letter of credit (or such other terms as are acceptable to Embarq). If CLEC provides a replacement letter of credit not later than 10 business days prior to the expiration of the expiring letter of credit, then Embarq shall not make a drawing under the expiring letter of credit. Upon receipt of a
replacement letter of credit meeting the requirements set forth in this Agreement, Embarq will provide the original, expiring letter of credit to CLEC.
37.10.4. If CLEC desires to replace any letter of credit issued to Embarq hereunder, whether due to non-renewal or otherwise, each such replacement letter of credit and the Letter of Credit Bank issuing such replacement letter of credit must meet the terms, conditions and requirements set forth in this Section.
PART D – LOCAL RESALE
38. TELECOMMUNICATIONS SERVICES PROVIDED FOR RESALE
38.1. At the request of CLEC, and pursuant to the requirements of the Act, and FCC and Commission Rules and Regulations, Embarq shall make available to CLEC for resale Telecommunications Services that Embarq currently provides or may provide hereafter at retail to subscribers who are not Telecommunications Carriers. Such resale may be as allowed by the FCC and Commission. The Telecommunications Services provided by Embarq to CLEC pursuant to this Part D are collectively referred to as "Local Resale." To the extent that this Part describes services which Embarq shall make available to CLEC for resale pursuant to this Agreement, this list of services is neither all inclusive nor exclusive.
39. GENERAL TERMS AND CONDITIONS
39.1. The prices charged to CLEC for Local Resale are the Embarq Tariff retail prices, discounted as set forth in Part C of this Agreement.
39.1.1. Voluntary Federal and State Subscriber Financial Assistance Programs. Subsidized local Telecommunications Services are provided to low-income subscribers pursuant to requirements established by the appropriate state regulatory body, and include programs such as Voluntary Federal Subscriber Financial Assistance Program and Link-Up America. Voluntary Federal and State Subscriber Financial Assistance Programs are not Telecommunications Services that are available for resale under this Agreement.
39.1.2. Embarq shall offer for resale to CLEC all Grandfathered Services solely for the existing grandfathered base on a customer specific basis. Embarq shall make reasonable efforts to provide CLEC with advance copy of any request for the termination of service and/or grandfathering to be filed by Embarq with the Commission.
39.1.3. Embarq shall offer for resale all of its Telecommunications Services available at retail to subscribers who are not Telecommunications Carriers, including but not limited to Contract Service Arrangements (or ICB), Special Arrangements (or ICB), and Promotions in excess of ninety (90) Days, all in accordance with FCC and Commission Rules and Regulations. For Contract Service Arrangements, Special Arrangements, or ICBs, the end-user customer’s agreement with Embarq will terminate and any applicable termination liabilities will be charged to the end-user customer. The terms of the Contract Service Arrangement, Special Arrangement or ICB will apply commencing on the date CLEC commences to provide service to the end-user customer and ending on the end date of the Contract Service Arrangement, Special Arrangement or ICB. Embarq will apply the rate in the Contract Service Arrangement, Special Arrangement or ICB in accordance with Section 39.1.
39.1.4. Customer Owned Coin Operated Telephone (COCOT) or Pay Telephone Access lines will not be resold to payphone service providers at wholesale prices under this Agreement.
39.1.5. For Telecommunications Services that are offered by Embarq to its end users and that are available for resale, the rules and regulations associated with Embarq’s retail Tariff(s) shall apply when the services are resold by CLEC. Use limitations shall be in Parity with services offered by Embarq to its end users.
39.1.6. Except as set forth above and as may be allowed by the FCC or Commission, Embarq shall not place conditions or restrictions on CLEC’s resale of wholesale regulated Telecommunications Services, except for restrictions on the resale of residential service to other classifications (e.g., residential service to business customers) and for promotions of ninety (90) Days or less in length. In addition, CLEC shall be prohibited from marketing its products using the Embarq product name (e.g., CLEC may purchase the features package called “Embarq Essential” but shall be prohibited from reselling this product using the Embarq brand name or the Embarq product name). Every regulated retail service rate, including promotions over ninety (90) Days in length, discounts, and option plans will have a corresponding wholesale rate. Embarq will make wholesale Telecommunications Service offerings available for all new regulated services at the same time the retail service becomes available.
39.1.7. Voice Mail Service is not a Telecommunications Service available for resale under this Agreement. However, where available, Embarq shall make available for Local Resale the SMDI-E (Station Message Desk Interface-Enhanced), or SMDI (Station Message Desk Interface) where SMDI-E is not available, feature capability allowing for Voice Mail Services. Embarq shall make available the MWI (Message Waiting Indicator) interrupted dial tone and message waiting light feature capabilities where technically available. Embarq shall make available CF-B/DA (Call Forward on Busy/Don't Answer), CF/B (Call Forward on Busy), and CF/DA (Call Forward Don't Answer) feature capabilities allowing for Voice Mail services. Where available, CLEC may purchase Voice Mail Service and related services for its end users at Embarq’s retail rates.
39.1.8. Hospitality Service. Embarq shall provide all blocking, screening, and all other applicable functions available for hospitality lines under tariff.
39.1.9. LIDB Administration
(a) Embarq shall maintain customer information for CLEC customers who subscribe to resold Embarq local service dial tone lines, in Embarq’s LIDB in the same manner that it maintains information in LIDB for its own similarly situated end-user subscribers. Embarq shall update and maintain the CLEC information in LIDB on the same schedule that it uses for its own similarly situated end-user subscribers.
(b) Until such time as Embarq’s LIDB has the software capability to recognize a resold number as CLEC’s, Embarq shall store the resold number in its LIDB at no charge and shall retain revenue for LIDB look-ups to the resold number.
39.1.10. Embarq will continue to provide Primary Interexchange Carrier (“PIC”) processing for end-users obtaining resold service from CLEC. Embarq will bill and CLEC will pay any PIC change charges. Embarq will only accept said requests for PIC changes from CLEC and not from CLEC’s end users.
PART E – UNBUNDLED NETWORK ELEMENTS
40.1. Pursuant to the following terms, Embarq will unbundle and separately price and offer Unbundled Network Elements (“UNEs”). CLEC shall pay Embarq each month for the UNEs provisioned, and shall pay the non-recurring charges listed in Table One or agreed to by the Parties. It is CLEC’s obligation to combine Embarq-provided UNEs with any facilities and services that CLEC may itself provide.
41. USE OF UNBUNDLED NETWORK ELEMENTS
41.1. Embarq shall offer UNEs to CLEC for the purpose of offering Telecommunications Service to CLEC subscribers. Embarq shall offer UNEs to CLEC on an unbundled basis on rates, terms and conditions that are just, reasonable, and non-discriminatory in accordance with the terms and conditions of this Agreement.
41.2. CLEC may use one or more UNEs to provide any feature, function, capability, or service option that such UNE(s) is (are) technically capable of providing, except as otherwise limited herein. Except as provided elsewhere in this Agreement, it is CLEC’s obligation to combine Embarq provided UNEs with any and all facilities and services whether provided by Embarq, CLEC, or any other party. CLEC may Commingle UNEs with Wholesale Services or Tariffed access services obtained from Embarq as provided for in this Agreement.
41.3. Each UNE provided by Embarq to CLEC shall be at Parity with the quality of design, performance, features, functions, capabilities and other characteristics, that Embarq provides to itself, Embarq’s own subscribers, to an Embarq Affiliate or to any other Telecommunications Carrier requesting access to that UNE.
41.4. CLEC may use Network Elements provided under this Agreement for any Telecommunications Service subject to the conditions listed below. By placing on order for UNEs, CLEC certifies that these requirements are met.
41.4.1. Any combination of the following, where both are provided by Embarq, are subject to the EEL use restrictions in Section 53.5.3. Such restrictions apply irrespective of the manner in which the loops and transport are combined
(a) high capacity loops (DS1, DS3), to the extent available, and special access transport (a commingled facility); or
(b) special access channel terminations (DS1, DS3) and Dedicated Transport (DS1, DS3), to the extent available (a commingled facility), or
(c) high capacity loops (DS1, DS3) and Dedicated Transport (DS1, DS3).
41.4.2. CLEC may not order or use a UNE for the exclusive provision of Mobile Wireless Service. Facilities connecting Embarq’s network and CMRS carriers’ networks do not qualify as UNEs and will not be available to CLEC as UNEs.
41.4.3. CLEC may not order or use a UNE for the exclusive provision of Interexchange Services (i.e., interLATA or intraLATA long distance). Facilities connecting Embarq’s network and interexchange carriers’ networks used by the interexchange carrier to exclusively provide such services to end users do not qualify as UNEs and will not be available to CLEC as UNE
41.4.4. CLEC must use any UNE purchased from Embarq for the purpose of providing eligible telecommunications services (not exclusively Mobile Wireless Service or Interexchange Services). CLEC may use a UNE for the provision of Interexchange Services, Mobile Wireless Service, or Information Services, if CLEC is also providing an eligible telecommunications service over the same UNE. CLEC may not order or use a UNE for the sole purpose of selling it to another carrier for the exclusive provision of Mobile Wireless Service or Interexchange Services.
41.4.5. An Information Service is not an eligible telecommunications service except that CLEC can use unbundled loops to provide xDSL services in accordance with this Agreement.
42. BONA FIDE REQUEST PROCESS
42.1. Embarq shall promptly consider and analyze CLEC requests for unbundled Network Elements included in this Agreement that are not currently developed by Embarq, network information that is reasonably required to determine what unbundled Network Elements it needs to serve a particular customer or development of and changes to Embarq work processes related to ordering, provisioning or installation of unbundled Network Elements with the submission of a Bona Fide Request (“BFR”) hereunder.
42.2. A BFR shall be submitted in writing on the Embarq Standard BFR Form and shall include a clear technical description of each request.
42.3. CLEC may cancel a BFR at any time, but shall pay all reasonable and demonstrable costs of processing and/or implementing the BFR up to the date of cancellation.
42.4. Within ten (10) calendar days of its receipt, the Embarq shall acknowledge receipt of the BFR.
42.5. Except under extraordinary circumstances, within thirty (30) calendar days of its receipt of a BFR, the Embarq shall provide to CLEC a preliminary analysis of such BFR.
42.6. Upon receipt of the preliminary analysis, CLEC shall, within thirty (30) calendar days, notify Embarq, in writing, of its intent to proceed or not to proceed.
42.7. Embarq shall promptly proceed with the BFR upon receipt of written authorization from CLEC. When it receives such authorization, Embarq shall promptly develop the requested services, determine their availability, calculate the applicable prices and establish installation intervals.
42.8. As soon as feasible, but not more than ninety (90) calendar days after its receipt of authorization to proceed with developing the BFR, Embarq shall provide to CLEC a BFR Quote which will include, at a minimum, a description of each service, the availability, the applicable rates and the installation intervals.
42.9. Within thirty (30) calendar days of its receipt of the BFR Quote, CLEC must either confirm, in writing, its order for the BFR pursuant to the BFR Quote or if a disagreement arises, seek resolution of the dispute under the Dispute Resolution procedures in Part B of this Agreement.
42.10. If a Party to a BFR believes that the other Party is not requesting, negotiating or processing the BFR in good faith, or disputes a determination, or price or cost quote, such Party may seek resolution of the dispute pursuant to the Dispute Resolution provisions in Part B of this Agreement.
43. INDIVIDUAL CASE BASIS PRICING
43.1. Individual Case Basis (ICB) pricing will be provided by Embarq upon request from the CLEC for customer specific rates or terms for network services and features for UNEs that are not otherwise provided for in this Agreement.
43.2. Embarq will process ICB Pricing requests upon receipt from the CLEC. Embarq will provide CLEC a price quote within thirty (30) business days from the receipt of the request. Price quote intervals may vary depending upon the complexity of the request but shall not exceed thirty (30) business days from the receipt of the request.
44. NETWORK INTERFACE DEVICE
44.1. Embarq will offer unbundled access to the network interface device element (NID). The NID is defined as any means of interconnection of end-user customer premises wiring to an incumbent LEC’s distribution plant, such as a cross connect device used for that purpose. This includes all features, functions, and capabilities of the facilities used to connect the loop to end-user customer premises wiring, regardless of the specific mechanical design.
44.2. The function of the NID is to establish the network demarcation point between a LEC (ILEC/CLEC) and its subscriber. The NID provides a protective ground connection, protection against lightning and other high voltage surges and is capable of terminating cables such as twisted pair cable.
44.3. CLEC may connect its NID to Embarq’s NID; may connect an unbundled loop to its NID; or may connect its own Loop to Embarq’s NID. Embarq will provide one NID termination with each loop. If additional NID terminations are required, CLEC may request them pursuant to the process detailed in the Bona Fide Request Section herein.
44.4. Embarq will provide CLEC with information that will enable their technician to locate end user inside wiring at NIDs terminating multiple subscribers. Embarq will dispatch a technician and tag the wiring at the CLEC’s request. In such cases the charges specified in Table One will apply.
44.5. Embarq will not provide specialized (Embarq non-standard) NIDS.
44.6. The Embarq NID shall provide a clean, accessible point of connection for the inside wiring and for the distribution media and/or cross connect to CLEC’s NID and shall maintain a connection to ground that meets applicable industry standards. Each Party shall ground its NID independently of the other party’s NID.
44.7. When requested, Embarq will provide NIDs separately from loops for a separate price as shown in Table 1. A NID will be provided with each unbundled loop and is included in the loop pricing shown in Table 1.
45.1. Embarq will provide CLEC access to Local Loops as defined in Part A including Copper Loops, DS1 Loops, DS3 Loops, Hybrid Loops, FTTC Loops and FTTH Loops. The following section includes the terms and conditions for Copper Loops, DS1 Loops, DS3 Loops, Hybrid Loops, FTTC Loops and FTTH Loops. Terms and conditions for making any network modifications resulting from CLEC’s request for Local Loops are contained in Section Error! Reference source not found..
45.2. At CLEC’s request, and if Technically Feasible, Embarq will test and report trouble on conditioned loops for all of the line’s features, functions, and capabilities, and will not restrict its testing to voice-transmission only. Testing shall include Basic Testing and Cooperative Testing. Optional Cooperative Testing and Joint Testing are performed only at CLEC’s request. To the extent CLEC requests testing that would require Embarq to purchase new equipment, establish
new procedures, or make systems modifications, CLEC will compensate Embarq for costs incurred to provide such testing. Request for additional testing must be submitted pursuant to the BFR Process in Section Error! Reference source not found..
45.2.1. Basic Testing shall include simple metallic measurements only, performed by accessing the loop through the voice Switch. Basic Testing does not include cooperative or joint testing efforts that require Embarq’s technician to work jointly with CLEC’s staff (“Cooperative Testing” or “Joint Testing”).
45.2.2. Cooperative testing is provided on service order activity only and will be provided by Embarq at CLEC’s expense. Embarq technicians will try to contact CLEC’s representative at the conclusion of installation. If the CLEC does not respond within three (3) minutes, Embarq may, in its sole discretion, abandon the test and CLEC will be charged for the test.
45.2.3. Joint Testing is provided on maintenance activity only and will be provided by Embarq at CLEC’s expense, when requested. Embarq technicians will try to contact CLEC’s representative to initiate Joint Testing after completing the requested activity. If the CLEC does not respond within three (3) minutes, Embarq may, in its sole discretion, abandon the test and CLEC will be charged for the test. Loops involving multiplexing prohibit the reading of a short.
45.2.4. Embarq will charge CLEC at the rates set out on Table One, when the location of the trouble on a CLEC-reported ticket is determined to be in CLEC’s network or on the CLEC end user’s side of the Demarcation Point.
45.3. Analog Loop Capabilities
45.3.1. Analog loops facilitate the transmission of voice grade signals in the 300-3000 Hz range and terminate in a 2-wire or 4-wire electrical interface at the CLEC’s end user’s premises. CLEC shall not install equipment on analog Loops that exceeds the specified bandwidth.
45.3.2. Embarq will provide analog Loops as Copper Loops, Hybrid Loops, and where required, FTTH Loops and FTTC Loops, based on available facilities.
45.4. Digital Loops
45.4.1. Embarq will provide digital Loops on the basis of the service that will be provisioned over the Loop. Digital Loops are Copper Loops over which CLEC may deploy advanced services. Deployment of advanced services over digital loops by CLEC will be consistent with the terms and conditions contained in Section 45.8. On digital Loops, Embarq will only provide electrical continuity and line balance.
45.4.2. Embarq shall employ industry accepted standards and practices to maximize binder group efficiency through analyzing the interference potential of each loop in a binder group, assigning an aggregate interference limit to the binder group, and then adding loops to the binder group until that limit is met. Disputes regarding the standards and practices employed in this regard shall be resolved through the Dispute Resolution Process set forth in Part B of this Agreement.
45.4.3. Reverse ADSL Loops. If a CLEC’s ADSL Transmission Unit (including those integrated into DSLAMs) is attached to Embarq’s Network and if an ADSL Copper Loop should start at an outside location, and is looped through a host or remote, and then to the subscriber, the copper plant from the outside location to the Embarq host or
remote central office must be a facility dedicated to ADSL transmission only and not part of Embarq’s regular feeder or distribution plant.
45.5. Non-Standard Digital Loops
45.5.1. If CLEC requests a digital Loop, for which the effective loop length exceeds the xDSL standard of 18 kft (subject to gauge design used in an area), Embarq will only provide a Non-Standard Digital Loop. Additional non-recurring charges for conditioning will apply. Non-Standard Digital Loops will not be subject to performance measurements or technical specifications, however, all of the SMC requirements set forth in
Section 45.4 are applicable.
45.6. DS1 Loops
45.6.1. Subject to the cap in Section 45.6.2, Embarq will provide CLEC nondiscriminatory access to a DS1 Loop on an unbundled basis to any building not served by a Wire Center with at least 60,000 Business Lines and at least four Fiber-based Collocators. Once a Wire Center exceeds both of these thresholds, no future DS1 loop unbundling will be required in that wire center. DS1 loops include, but are not limited to, two-wire and four-wire Copper Loops capable of providing high-bit rate digital subscriber line services, including T1 services. The Wire Centers that meet these requirements as of the date of this Agreement are listed on Exhibit A.
45.6.2. CLEC may obtain a maximum of ten unbundled DS1 loops to any single building in which DS1 loops are available as unbundled loops.
45.6.3. Any DS1 loop UNEs that CLEC leased from Embarq as of 03/11/05, but which Embarq is not obligated to unbundle pursuant to Sections 45.6.1 and 45.6.2, must be converted to an alternative service arrangement within thirty (30) days of the Effective Date of this Agreement. Any service provided by Embarq to CLEC over such DS1 Loops after 03/11/05 and prior to such conversion shall be billed at applicable rates for comparable access services.
(a) If CLEC fails to submit the necessary orders to convert the DS1 Loops within thirty (30) days of the Effective Date of this Agreement, Embarq will convert the DS1 Loops to comparable access services at applicable rates. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC. Embarq will issue a credit to CLEC for the service order/conversion charge in Table One for conversion orders submitted prior to 12/11/05.
(b) If CLEC has ordered new UNE DS1 Loop in Wire Centers identified on Exhibit A since 03/11/05, those UNEs will be converted to comparable access services and the applicable rates for such comparable access services will apply back to 03/11/05.
45.6.4. Where Embarq is not required to provide unbundled DS1 loops pursuant to Sections 45.6.1 and 45.6.2, CLEC may not obtain new DS1 loops as UNEs.
45.6.5. If Embarq identifies Wire Centers in addition to those listed on Exhibit A that exceed the DS1 Loop threshold, Embarq will provide CLEC notice in accordance with the notice provisions of this Agreement. CLEC shall not be able to order new DS1 loops for the identified wire centers after ninety (90) days have elapsed from the date of the notice, subject to the Dispute Resolution section of this Agreement. If any carrier has disputed a wire center designation and the dispute was resolved by the Commission, the parties will abide by the Commission’s decision. Any DS1 loops leased from
Embarq within an identified Wire Center on the date of the notice shall be available for a six (6) month period from the date of the notice at a rate equal that is 115% of rate CLEC paid on the date of the notice.
(a) CLEC must submit the necessary orders to convert these UNEs to an alternative service arrangement within six (6) months of the above notice date. By the end of the six month period, CLEC must have transitioned the UNEs to alternative facilities or arrangements. If CLEC fails to submit the necessary orders before the end of the six (6) month period, Embarq will convert the DS1 Loops to comparable Access Services. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC.
45.7. DS3 Loops
45.7.1. Subject to the cap described in Section 45.7.2, Embarq shall provide CLEC with nondiscriminatory access to a DS3 loop on an unbundled basis to any building not served by a Wire Center with at least 38,000 Business Lines and at least four Fiber- based Collocators. Once a Wire Center exceeds both of these thresholds, no future DS3 loop unbundling will be required in that Wire Center. The Wire Centers that meet these requirements as of the date of this Agreement are listed on Exhibit A.
45.7.2. CLEC may obtain a maximum of a single unbundled DS3 loop to any single building in which DS3 loops are available as unbundled loops.
45.7.3. Any DS3 loop UNEs that CLEC leased from Embarq as of 03/11/05, but which Embarq is not obligated to unbundle pursuant to Sections 45.7.1 and 45.7.2, must be converted to an alternative service arrangement within thirty (30) days of the Effective Date of this Agreement. Any service provided by Embarq to CLEC over such DS3 Loops after 03/11/05 and prior to such conversion shall be billed at applicable rates for comparable access services.
(a) If CLEC fails to submit the necessary orders to convert the DS3 Loops within thirty (30) days of the Effective Date of this Agreement, Embarq will convert the DS3 Loops to comparable Access Services. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC. Embarq will issue a credit to CLEC for the service order/conversion charge in Table One for conversion orders submitted prior to 12/11/05.
(b) If CLEC has ordered new UNE DS3 Loop in Wire Centers identified on Exhibit A since 03/11/05, those UNEs will be converted to comparable access services and the applicable rates for such comparable access services will apply back to 03/11/05.
45.7.4. Where Embarq is not required to provide unbundled DS3 loops pursuant to Sections 45.7.1 and 45.7.2, CLEC may not obtain new DS3 loops as UNEs.
45.7.5. If Embarq identifies Wire Centers in addition to those listed on Exhibit A that exceed the threshold, Embarq will provide CLEC notice in accordance with the notice provisions of this Agreement. CLEC shall not be able to order new DS3 loops for the identified wire centers after 90 days have elapsed from the date of the notice, subject to the Dispute Resolution section of this Agreement. If any carrier has disputed a wire center designation and the dispute was resolved by the Commission, the parties will abide by the Commission’s decision. Any DS3 loops leased from Embarq on the date of the notice shall be available for a six (6) month period from the date of the notice at a rate equal that is 115% of rate CLEC paid on the date of the notice.
(a) CLEC must submit the necessary orders to convert these UNEs to an alternative service arrangement within six months of the above notice date. By the end of the six month period, CLEC must have transitioned the UNEs to alternative facilities or arrangements. If CLEC fails to submit the necessary orders by the end of the six (6) month period, Embarq will convert the DS3 Loops to comparable Access Services at applicable rates. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC.
45.8. Adherence to National Industry Standards
45.8.1. In providing advanced service loop technology, Embarq shall allow CLEC to deploy underlying technology that does not significantly interfere with other advanced services and analog circuit-switched voice band transmissions.
45.8.2. Until long term industry standards and practices can be established, a particular technology shall be presumed acceptable for deployment under certain circumstances. Deployment that is consistent with at least one of the following circumstances presumes that such loop technology will not significantly degrade the performance of other advanced services or impair traditional analog circuit-switched voice band services:
(a) Complies with existing industry standards, including an industry-standard PSD mask, as well as modulation schemes and electrical characteristics;
(b) Is approved by an industry standards body, the FCC, or any state commission or;
(c) Has been successfully deployed by any CLEC without significantly degrading the performance of other services.
45.8.3. Where CLEC seeks to establish that deployment of a technology falls within the presumption of acceptability under paragraph 45.8.2, the burden is on CLEC to demonstrate to the Commission that its proposed deployment meets the threshold for a presumption of acceptability and will not, in fact, significantly degrade the performance of other advanced services or traditional voice band services.
45.8.4. If a deployed technology significantly degrades other advanced services, the affected Party will notify the interfering party and give them a reasonable opportunity to correct the problem. The interfering Party will immediately stop any new deployment until the problem is resolved to mitigate disruption of other carrier services. If the affected parties are unable to resolve the problem, they will present factual evidence to the Commission for review and determination. If the Commission determines that the deployed technology is the cause of the interference, the deploying party will remedy the problem by reducing the number of existing customers utilizing the technology or by migrating them to another technology that does not disturb.
45.8.5. When the only degraded service itself is a known disturber and the newly deployed technology is presumed acceptable pursuant to Section 45.8.2, the degraded service shall not prevail against the newly deployed technology.
45.8.6. If Embarq denies a request by CLEC to deploy a technology, it will provide detailed, specific information providing the reasons for the rejection.
45.8.7. Parties agree to abide by national standards as developed by ANSI, i.e., Committee T1E1.4 group defining standards for loop technology. At the time the deployed technology is standardized by ANSI or the recognized standards body, the CLEC will
upgrade its equipment to the adopted standard within sixty (60) Days of the standard being adopted.
45.8.8. CLEC shall meet the power spectral density requirement given in the respective technical references listed below:
(a) For Basic Rate ISDN: Telcordia TR-NWT-000393 Generic Requirements for ISDN Basic Access Digital Subscriber Lines.
(b) For HDSL installations: Telcordia TA-NWT-001210 Generic Requirements for High-Bit-Rate Digital Subscriber Lines. Some fractional T1 derived products operating at 768 kbps may use the same standard.
(c) For ADSL: ANSI T1.413-1998 (Issue 2 and subsequent revisions) Asymmetrical Digital Subscriber Line (ADSL) Metallic Interface.
(d) As an alternative to Section 45.8.8, CLEC may meet the requirements given in ANSI document T1E1.4/2000-002R2 dated May 1, 2000. “Working Draft of Spectrum Management Standard” and subsequent revisions of this document.
45.9. Information to be Provided for Deployment of Advanced Services
45.9.1. Upon request, Embarq shall provide to CLEC:
(a) information with respect to the spectrum management procedures and policies that Embarq uses in determining which services can be deployed;
(b) information with respect to the rejection of CLEC’s provision of advanced services, together with the specific reason for the rejection; and
(c) information with respect to the number of loops using advanced services technology within the binder and type of technology deployed on those loops.
45.9.2. In connection with the provision of advanced services, CLEC shall provide to Embarq the following information on the type of technology that CLEC seeks to deploy where CLEC asserts that the technology it seeks to deploy fits within a generic Power Spectral Density (PSD) mask:
(a) information in writing (via the service order) regarding the Spectrum Management Class (SMC), as defined in the T1E1.4/2000-002R2 Draft, of the desired loop so that the loop and/or binder group may be engineered to meet the appropriate spectrum compatibility requirements;
(b) the SMC (i.e., PSD mask) of the service it seeks to deploy, at the time of ordering and if CLEC requires a change in the SMC of a particular loop, CLEC shall notify Embarq in writing of the requested change in SMC (via a service order);
(c) to the extent not previously provided CLEC must disclose to Embarq every SMC that the CLEC has implemented on Embarq’s facilities to permit effective Spectrum Management.
45.10. Hybrid Loops. Embarq will provide CLEC access to Hybrid Loops for the provision of narrowband services as provided below. Embarq is not required to provide unbundled access to the packet switched features, functions, and capabilities of its Hybrid Loops.
45.10.1. When CLEC requests access to a Hybrid Loop for the provision of narrowband services, Embarq will
(a) Provide non-discriminatory unbundled access to the entire Hybrid Loop capable of providing voice-grade service (i.e., equivalent to DS0 capacity) using time division multiplexing, or
(b) Provide non-discriminatory unbundled access to a spare Copper Loop serving that end-user.
45.11. Fiber Loops
45.11.1. Dark Fiber Loops
(a) Dark Fiber is an optical transmission facility without attached multiplexing, aggregation or other electronics. Dark Fiber is unactivated fiber optic cable, deployed by Embarq that has not been activated through connections to optronics that light it, and thereby render it capable of carrying communications.
(b) Embarq is not required to provide CLEC with access to dark fiber loop on an unbundled basis.
(c) For an eighteen (18) month period beginning on 03/11/05, any dark fiber loop UNEs that CLEC leases from Embarq as of 03/11/05 shall be available for lease from Embarq at the rate on Table One. The charges for dark fiber loop are subject to true-up retroactive to 03/5/05 regardless of when this Agreement is effective. CLEC may not obtain new dark fiber loops as UNEs.
(d) CLEC must submit the necessary orders to convert these UNEs to an alternative service arrangement within eighteen months of 03/11/05. Embarq will issue a credit to CLEC for the service order/conversion charge in Table One for orders submitted prior to 12/11/05. By 09/10/06, CLEC must transition the UNEs to alternative facilities or arrangements. If CLEC fails to submit the necessary orders on or before 09/10/06, Embarq will convert the Dark Fiber Loops to comparable Access Services, if any, or disconnect the Dark Fiber facilities. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC.
45.12. FTTH and FTTC Fiber Loops
45.12.1. New builds. Embarq will not provide non-discriminatory access to FTTH Loop or a FTTC Loop on an unbundled basis when Embarq has deployed a FTTH or FTTC Loop to an end-user customer premise that previously has not been served by any loop facility.
45.12.2. Overbuilds. Embarq will not provide non-discriminatory access to FTTH Loop or FTTC Loop on an unbundled basis when Embarq has deployed a FTTH Loop or FTTC Loop parallel to, or in replacement of, an existing loop facility, except that:
(a) Embarq will maintain the existing Copper Loop connected to a particular customer premises after deploying FTTH Loop or FTTC Loop and provide non- discriminatory access to the Copper Loop on an unbundled basis unless Embarq has retired the Copper Loop as set forth below.
(b) If Embarq deploys FTTH Loop or FTTC Loop and maintains the existing Copper Loop, Embarq will restore the Copper Loop to serviceable condition upon request.
(c) If Embarq deploys FTTH Loop or FTTC Loop and retires the existing Copper Loop, Embarq will provide non-discriminatory access to a 64 kilobits per second transmission path capable of voice grade service over the FTTH Loop or FTTC Loop.
(d) Prior to retiring Copper Loop or copper subloop that has been replaced with FTTH Loop or FTTC Loop Embarq will comply with the notice requirements set forth in 251(c)(5) of the Act, §§ 51.325 through 51.335 of the Code of Federal Regulations and applicable Commission requirements, if any.
45.13. Tag and Label. At CLEC's request, Embarq will tag and label unbundled loops at the Network Interface Device (NID). Tag and label may be ordered simultaneously with the ordering of the Loop or as a separate service subsequent to the ordering of the Loop.
Embarq will include the following information on the label: order number, due date, CLEC name, and the circuit number.
CLEC must specify on the order form whether each Loop should be tagged and labeled.
The rates for Loop tag and label and related services are set forth on Table One. A trip charge may be billed in addition to the Tag and Label charges.
46.1. Embarq will offer unbundled access to copper subloops and subloops for access to multiunit premises wiring. Embarq will consider all requests for access to subloops through the ICB process due to the wide variety of interconnections available and the lack of standards. A written response will be provided to CLEC covering the interconnection time intervals, prices and other information based on the ICB process as set forth in this Agreement.
46.2. Embarq is not required to provide CLEC access to dark fiber subloops.
46.3. Copper Subloops. Embarq will make available access to copper subloops on an unbundled basis. A copper subloop is a portion of a Copper Loop, or Hybrid Loop, and is comprised entirely of copper wire or copper cable that acts as a transmission facility between any accessible terminal in Embarq’s outside plant, including inside wire owned or controlled by Embarq, and the end-user customer premises. A copper subloop can also include intermediate devices, such as repeaters, used to establish the transmission path. Copper subloops can be used by CLEC to provide voice- grade services as well as digital subscriber line services. Access to copper subloops is subject to the collocation provisions of this Agreement. Copper subloop consists of the distribution portion of the Copper Loop. Embarq is not obligated to offer feeder loop plant as a stand-alone UNE.
46.3.1. An accessible terminal is any point on the loop where technicians can access a copper wire within the cable without removing a splice case. Such points include, but are not limited to, a pole or pedestal, the serving area interface, the network interface device, the minimum point of entry, any remote terminal, and the feeder/distribution interface.
46.4. Multiunit premises wiring. Embarq will make available to CLEC access to subloops for access to multiunit premises wiring on an unbundled basis. The subloop for access to multiunit premises wiring is defined as any portion of the loop that it is technically feasible to access at a terminal in the incumbent LEC’s outside plant at or near a multiunit premises, including inside wire. Inside wire is wire owned or controlled by Embarq at a multiunit customer premises between the minimum point of entry and the point of demarcation.
46.4.1. An accessible terminal is any point in Embarq’s network where a technician can access the wire within the cable (e.g., via screw posts, terminals, patch panels) without removing a splice case to reach the wire within to access the wiring in the multiunit premises. Such points include, but are not limited to, a pole or pedestal, the NID, the minimum point of entry, the single point of interconnection, and the feeder/distribution interface.
46.4.2. Upon request for interconnection at a multiunit premises where Embarq owns, controls, or leases wiring, Embarq will provide a single point of interconnection that is suitable for use by multiple carriers. If the Parties do not agree on appropriate terms, conditions and rates for the single point of interconnection to multiunit premises wiring either Party may invoke the Dispute Resolution provisions of this Agreement.
46.5. Embarq will not provide or maintain inside wire in situations where it determines there are health or safety concerns in doing so.
46.6. Deployment of advanced services by CLEC over subloops will be in accordance with the terms included in Section 45.8 and Section 45.9.
46.7. Reverse ADSL Loops. If a CLEC’s ADSL Transmission Unit (including those integrated into DSLAMs) is attached to Embarq’s Network and if an ADSL Copper Loop should start at an outside location, and is looped through a host or remote, and then to the subscriber, the copper plant from the outside location to the Embarq host or remote central office must be a facility dedicated to ADSL transmission only and not part of Embarq’s regular feeder or distribution plant.
47. OPERATIONS SUPPORT SYSTEMS (OSS)
47.1. Embarq will offer unbundled access to Embarq’s operations support systems to the extent technically feasible in a non-discriminatory manner at Parity. OSS consists of pre-ordering, ordering, provisioning, maintenance and repair, and billing functions supported by Embarq’s databases and information. The OSS element includes access to all loop qualification information contained in Embarq’s databases or other records, including information on whether a particular loop is capable of providing advanced services.
48. LOOP MAKE-UP INFORMATION
48.1. Embarq shall make available Loop Make-Up Information in a non-discriminatory manner at Parity with the data and access it gives itself and other CLECs, including affiliates. The charges for Loop Make-Up Information are set forth in Table One to this Agreement.
48.2. Information provided to the CLEC will not be filtered or digested in a manner that would affect the CLEC’s ability to qualify the loop for advanced services.
48.3. Embarq shall provide Loop Make-Up Information based on the individual telephone number or address of an end-user in a particular wire center or NXX code. Loop Make-Up Information requests will be rejected if the service address is not found within existing serving address information, if the telephone number provided is not a working number or if the POI identified is not a POI where the requesting CLEC connects to the Embarq LTD network.
48.4. Errors identified in validation of the Loop Make-Up Information inquiry order will be returned to the CLEC.
48.5. Embarq may provide the requested Loop Make-Up Information to the CLECs in whatever manner Embarq would provide to their own internal personnel, without jeopardizing the integrity of proprietary information (i.e., fax, intranet inquiry, document delivery, etc.). If the data is provided
via fax, CLEC must provide a unique fax number used solely for the receipt of Loop Make-Up Information.
48.6. If CLEC does not order Loop Make-Up Information prior to placing an order for a loop for the purpose of provisioning of an advanced service and the advanced service cannot be successfully implemented on that loop, CLEC agrees that:
48.6.1. CLEC will be charged a Trouble Isolation Charge to determine the cause of the failure;
48.6.2. If Embarq undertakes Loop Make-Up Information activity to determine the reason for such failure, CLEC will be charged a Loop Make-Up Information Charge; and
48.6.3. If Embarq undertakes Conditioning activity for a particular loop to provide for the successful installation of advanced services, CLEC will pay applicable conditioning charges as set forth in Table One pursuant to Section 54.3 of this Agreement.
49. LOCAL CIRCUIT SWITCHING
49.1. DS0 Capacity (i.e., mass market)
49.1.1. Embarq is not required to provide access to local circuit switching on an unbundled basis to CLEC for the purpose of serving end-user customers using DS0 capacity loops.
49.1.2. CLEC shall migrate its embedded base of end-user customers off of the unbundled local circuit switching element, including local circuit switching provided as part of UNE-P, to an alternative arrangement within thirty (30) days of the Effective Date of this Agreement. If CLEC fails to submit the necessary orders to convert and complete the transition of these UNEs to an alternative service arrangement within thirty (30) days of the Effective Date of this Agreement, Embarq will convert the UNE-P to comparable Wholesale Services. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC. Any unbundled local circuit switching, including local circuit switching provided as part of UNE-P over such UNEs after 03/11/05 and prior to such conversion shall be billed at the rates for Wholesale Service set forth on Table One.
49.1.3. CLEC may not obtain new local circuit switching as an unbundled network element.
49.2. Elements related to the local circuit switching element will made available on an unbundled basis to CLEC to the extent that CLEC is entitled to unbundled local circuit switching as set forth above.
49.2.1. Embarq will provide CLEC with non-discriminatory access to signaling, call-related databases and common transport facilities on an unbundled basis, to the extent that Embarq is required to provide unbundled local circuit switching as set forth above.
49.3. Embarq is not required to provide local switching under this Section for switching used to serve end users with four or more lines in access density zone 1, in the top fifty (50) Metropolitan Statistical Areas.
49.4. Embarq is not required to provide access to local circuit switching on an unbundled basis to requesting carriers using DS1 capacity and above.
50. DEDICATED TRANPORT
50.1. Embarq shall provide CLEC with nondiscriminatory access to dedicated transport on an unbundled basis, as set forth in this Agreement. A “route” is a transmission path between one of Embarq’s Wire Centers or switches and another of Embarq’s Wire Centers or switches. A route between two points (e.g., Wire Center or switch “A” and Wire Center or switch “Z”) may pass through one or more intermediate wire centers or switches (e.g., Wire Center or switch “X”). Transmission paths between identical end points (e.g., Wire Center or switch “A” and Wire Center or switch “Z”) are the same “route,” irrespective of whether they pass through the same intermediate Wire Centers or switches, if any.
50.1.1. Embarq is not obligated to provide a requesting carrier with unbundled access to dedicated transport that does not connect a pair of Embarq Wire Centers (i.e., entrance facilities). Further, Embarq is not obligated to provide DSO or OC-N and above Dedicated Transport facilities as a UNE.
50.2. Dedicated DS1 transport shall be made available to CLEC on an unbundled basis as set forth below. Dedicated DS1 transport consists of Embarq interoffice transmission facilities that have a total digital signal speed of 1.544 megabytes per second and are dedicated to a particular customer or carrier.
50.2.1. Embarq shall unbundle DS1 transport between any pair of Embarq Wire Centers except where, through application of tier classifications defined in Part A, both wire centers defining the route are Tier 1 Wire Centers. As such, Embarq will unbundle DS1 transport if a Wire Center at either end of a requested route is not a Tier 1 Wire Center, or if neither is a Tier 1 Wire Center.
50.2.2. CLEC may obtain a maximum of ten unbundled DS1 dedicated transport circuits on each route where DS1 dedicated transport is available on an unbundled basis.
50.2.3. Any DS1 dedicated transport UNE that CLEC leased from Embarq as of 03/11/05, but which Embarq is not obligated to unbundle pursuant to Sections 50.2.1 and 50.2.2, must be converted to an alternative service arrangement within thirty (30) days of the Effective Date of this Agreement. Any service provided by Embarq to CLEC over such DS1 dedicated transport after 03/11/05 and prior to such conversion shall be billed at applicable rates for comparable services as shown on Table One. Where Embarq is not required to provide unbundled DS1 transport pursuant
Sections 50.2.1 and 50.2.2, CLEC may not obtain new DS1 transport as unbundled Network Elements. If CLEC fails to submit the necessary orders to convert and complete the transition of these UNEs to an alternative service arrangement within thirty (30) days of the Effective Date of this Agreement, Embarq will convert the DS1 Dedicated Transport to comparable Access Services at applicable rates.
Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC. Embarq will issue a credit to CLEC for the service order/conversion charge in Table One for orders submitted prior to 12/11/05.
(a) If CLEC has ordered new UNE DS1 Dedicated Transport on routes identified on Exhibit A since 03/11/05, those UNEs will be converted to comparable access services and the applicable rates will apply back to 03/11/05.
50.2.4. If Embarq identifies routes in addition to those listed on Exhibit A that exceed the DS1 Dedicated Transport circuit threshold for a route, Embarq will provide CLEC notice in accordance with the notice provisions of this Agreement. CLEC shall not be able to order new DS1 Dedicated Transport for the identified routes after ninety
(90) days have elapsed from the date of the notice, subject to the Dispute Resolution section of this Agreement. If any carrier has disputed a Wire Center designation and the dispute was resolved by the Commission, the parties will abide by the
Commission’s decision. Any DS1 Dedicated Transport leased from Embarq within the identified route on the date of the notice shall be available for a six (6) month period from the date of the notice at a rate equal that is 115% of rate CLEC paid on the date of the notice.
(a) CLEC must submit the necessary orders to convert these UNEs to an alternative service arrangement within six months of the above notice date.
By the end of the six month period, CLEC must have transitioned the UNEs to alternative facilities or arrangements. If CLEC fails to submit the necessary orders within the six month period, Embarq will convert the DS1 Dedicated Transport to comparable Access Services at applicable rates. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC.
50.3. Dedicated DS3 transport shall be made available to CLEC on an unbundled basis as set forth below. Dedicated DS3 transport consists of Embarq interoffice transmission facilities that have a total digital signal speed of 44.736 megabytes per second and are dedicated to a particular customer or carrier.
50.3.1. Embarq shall unbundle DS3 transport between any pair of Embarq Wire Centers except where, through application of tier classifications defined in this Agreement, both Wire Centers defining the route are either Tier 1 or Tier 2 wire centers. As such, Embarq will unbundle DS3 transport if a Wire Center on either end of a requested route is a Tier 3 Wire Center.
50.3.2. CLEC may obtain a maximum of twelve unbundled DS3 dedicated transport circuits on each route where DS3 dedicated transport is available on an unbundled basis.
50.3.3. Any DS3 dedicated transport UNE that CLEC leased from Embarq as 03/11/05 but which Embarq is not obligated to unbundle pursuant to Sections 50.3.1 and 50.3.2, must be converted to an alternative service arrangement within thirty (30) days of the Effective Date of this Agreement. Any service provided by Embarq to CLEC over such DS3 dedicated transport after 03/11/05 and prior to such conversion shall be billed at applicable rates for comparable services as shown on Table One. Where Embarq is not required to provide unbundled DS3 transport pursuant to
Sections 50.3.1 and 50.3.2, CLEC may not obtain new DS3 transport as unbundled Network Elements. If CLEC fails to convert and complete the transition of these UNEs to an alternative service arrangement within thirty (30) days of the Effective Date of this Agreement, Embarq will convert the DS3 Dedicated Transport to comparable Access Services. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC. Embarq will issue a credit to CLEC for the service order/conversion charge in Table One for orders submitted prior to 12/11/05.
(a) If CLEC has ordered new UNE DS3 Dedicated Transport between Wire Centers identified on Exhibit A since 03/11/05, those UNEs will be converted to comparable access services and the applicable rates will apply back to 03/11/05.
50.3.4. If Embarq identifies routes in addition to those listed on Exhibit A that exceed the DS3 Dedicated Transport circuit threshold for a route, Embarq will provide CLEC notice in accordance with the notice provisions of this Agreement. CLEC shall not be able to order new DS3 Dedicated Transport for the identified routes after ninety
(90) days have elapsed from the date of the notice, subject to the Dispute Resolution section of this Agreement. If any carrier has disputed a Wire Center designation and the dispute was resolved by the Commission, the parties will abide by the
Commission’s decision. Any DS3 Dedicated Transport leased from Embarq within the identified route on the date of the notice shall be available for a six (6) month period from the date of the notice at a rate equal that is 115% of rate CLEC paid on the date of the notice.
(a) CLEC must submit the necessary orders to convert these UNEs to an alternative service arrangement within six months of the above notice date. By the end of the six (6) month period, CLEC must have transitioned the UNEs to alternative facilities or arrangements. If CLEC fails to submit the necessary orders before the end of six (6) month period, Embarq will convert the DS3 Dedicated Transport to comparable Access Services at applicable rates. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC.
50.4. Technical Requirements for DS1 and DS3 Dedicated Transport
50.4.1. Where technologically feasible and available, Embarq shall offer Dedicated Transport consistent with the underlying technology as follows:
(a) When Embarq provides Dedicated Transport, the entire designated transmission circuit (e.g., DS1, DS3) shall be dedicated to CLEC designated traffic.
(b) Where Embarq has technology available, Embarq shall provide Dedicated Transport using currently available technologies including, but not limited to, DS1 and DS3 transport systems, SONET (or SDS) Bi-directional Line Switched Rings, SONET (or SDH) Unidirectional Path Switched Rings, and SONEfT (or SDS) point-to-point transport systems (including linear add-drop systems), at all available transmission bit rates.
50.5. Dedicated Dark Fiber Transport
50.5.1. General Rules and Definition
(a) Dark Fiber is an optical transmission facility without attached multiplexing, aggregation or other electronics. Dark Fiber is unactivated fiber optic cable, deployed by Embarq, that has not been activated through connections to optronics that light it, and thereby render it capable of carrying communications.
(b) Embarq will unbundle Dark Fiber for Dedicated Transport as set forth in this Agreement and as follows:
(i) Embarq shall unbundle dark fiber transport between any pair of Embarq Wire Centers except where both wire centers defining the route are either Tier 1 or Tier 2 Wire Centers. Embarq will unbundle dark fiber transport if a Wire Center on either end of a requested route is a Tier 3 Wire Center.
(ii) Beginning on 03/11/05 and for an 18-month period, any dark fiber transport UNE that CLEC leases from Embarq, where Embarq is not obligated to provide unbundled dark fiber transport, shall be available at the rates on Table One. CLEC will true-up the rates paid for dark fiber dedicated transport back to 03/11/05. Where Embarq is not required to provide unbundled dark fiber transport, CLEC may not obtain new dark fiber transport as a UNE.
(iii) CLEC must submit the necessary orders to convert these UNEs to an alternative service arrangement within eighteen months of 03/11/05. Embarq will issue a credit to CLEC for the service order/conversion charge in Table One for orders submitted prior to 06/11/06. By 09/10/06, CLEC must have transitioned the UNEs to alternative facilities or arrangements. If CLEC fails to submit the necessary orders before 09/10/06, Embarq will convert the Dark Fiber Dedicated Transport to comparable Access Services, if available, or disconnect the Dark Fiber facilities. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC.
(c) If Embarq identifies routes in addition to those listed on Exhibit A that exceed the threshold, Embarq will provide CLEC notice in accordance with the notice provisions of this Agreement. CLEC shall not be able to order new Dark Fiber Dedicated Transport for the identified routes after ninety (90) days have elapsed from the date of the notice, subject to the Dispute Resolution section of this Agreement. If any carrier has disputed a Wire Center designation and the dispute was resolved by the Commission, the parties will abide by the Commission’s decision. Any Dark Fiber Dedicated Transport leased from Embarq within the identified route on the date of the notice shall be available for a six (6) month period from the date of the notice at a rate equal that is 115% of rate CLEC paid on the date of the notice.
(i) CLEC must submit the necessary orders to convert these UNEs to an alternative service arrangement within six months of the above notice date. By the end of the six (6) month period, CLEC must have transitioned the UNEs to alternative facilities or arrangements. If CLEC fails to submit the necessary orders, Embarq will convert the Dark Fiber Dedicated Transport to comparable Access Services, if available, or disconnect the Dark Fiber facilities. Embarq will assess the conversion charge and a management fee for the work performed by Embarq on behalf of CLEC.
50.5.2. Fiber Availability
(a) Spare fibers in a sheath are not considered available if Embarq has plans to put the fiber in use within the current year or the following year.
(b) Embarq will also maintain fibers to facilitate maintenance, rearrangements and changes. Embarq will generally reserve eight percent (8%) of fibers in a sheath for maintenance, subject to a minimum of four (4) fibers and a maximum of twelve (12) fibers.
(c) Dark fiber requests will be handled on a first come, first served basis, based on the date the Dark Fiber Application (DFA) is received.
50.5.3. Interconnection Arrangements
(a) Rules for gaining access to unbundled network elements apply to Dark Fiber. Virtual and physical collocation arrangements may be used by CLEC to locate the optical electronic equipment necessary to "light" leased Dark Fiber.
(b) The CLEC that requests Dark Fiber must be able to connect to the Embarq fiber by means of fiber patch panel.
(c) If fiber patch panels (FPPs) are not located within close enough proximity for a fiber patch cord, CLEC must submit an ICB request for the purchase and installation of intraoffice cabling.
(d) Establishment of applicable fiber optic transmission equipment or intermediate repeaters needed to power the unbundled Dark Fiber in order to carry Telecommunications Services is the responsibility of the CLEC.
50.5.4. Dark Fiber Application and Ordering Procedure
(a) CLEC will submit a Dark Fiber Application (DFA) and application fee to request that Embarq determine the availability of Dark Fiber between the CLEC-specified locations. See Table One for application fee amount.
(b) Within twenty (20) business days of receipt of DFA, Embarq will provide CLEC with a response regarding fiber availability and price.
(i) If Dark Fiber is not available, Embarq will notify CLEC of the DFA rejection.
(ii) CLEC will follow the Dispute Resolution Process outlined in Part B of this Agreement if CLEC wishes to contest the rejection.
(c) If Dark Fiber is available, CLEC will notify Embarq of acceptance/rejection of Dark Fiber quote, via a firm order, within ten (10) business days of receipt of quote. Embarq will reserve the requested Dark Fiber for the CLEC during these ten (10) business days. If, however, CLEC does not submit a firm order by the tenth (10th) business day, the fiber will no longer be reserved.
(d) After ten (10) business days of receipt of the price quote, if CLEC has not accepted, CLEC must submit another DFA and application fee.
(e) The CLEC will submit a firm order for Dark Fiber via an access service request (ASR).
(f) By submitting the Dark Fiber firm order, the CLEC agrees to pay quoted monthly recurring and non-recurring charges. See Table One for monthly recurring and non-recurring charges.
(g) Due Date. Embarq will provision Dark Fiber twenty (20) Business Days after it receives firm order from CLEC. Billing of the monthly recurring and non- recurring charges will begin upon completion of Dark Fiber order. Embarq will allow CLEC to extend due date for firm order completion up to sixty (60) business days from the date Embarq receives firm order from CLEC. This extended due date must be specified on the firm order.
(i) Billing of the monthly recurring and non-recurring charges will begin on the due date of the Dark Fiber order completion unless:
(A) CLEC cancels firm order before the established due date. If this occurs, CLEC agrees to reimburse Embarq for all costs incurred to date; or
(B) a third party submits firm order for same Dark Fiber. If this occurs, CLEC must begin compensating Embarq for monthly
recurring and non-recurring charges in order to reserve fiber, once Embarq is able to provide Dark Fiber to CLEC.
50.5.5. Maintenance and Testing
(a) Embarq is only responsible for maintaining the facilities that it owns.
(b) Embarq will conduct an end-to-end test of Dark Fiber after receipt of the firm order.
(c) For meet point arrangements, Embarq will conduct cooperative testing with another carrier at CLEC’s request. Additional rates and charges will apply.
(d) Embarq does not guarantee that the transmission characteristics of the Dark Fiber will remain unchanged over time.
(e) Embarq is not responsible for determining whether the transmission characteristics of the Dark Fiber will accommodate the CLEC requirements.
50.5.6. Rules for Take Back
(a) Embarq reserves the right to take back Dark Fiber to meet its carrier of last resort obligations.
(b) Embarq will provide CLEC twelve (12) months written notice prior to taking back fiber.
(c) If multiple CLECs have leased fiber within a single sheath, Embarq will take back the fiber that was the last to be leased.
(d) Embarq will provide the CLEC with alternative transport arrangements when Embarq takes back working fiber.
(e) The Dispute Resolution Procedures found in Part B of this Agreement will be followed if CLEC wishes to contest Embarq’s decision to take back its leased fiber.
51.1. For the purpose of this Section, wholesale services includes both services CLEC procures for resale pursuant to 251(c)(4) and exchange access service purchased from Embarq’s access Tariffs.
51.2. CLEC may Commingle an unbundled network element or combination of UNEs with wholesale services purchased from Embarq, subject to Section 53.5.4. Upon request, Embarq will perform the work necessary to Commingle such UNE or UNE combinations with wholesale services purchased from Embarq subject to Section Error! Reference source not found.. CLEC will compensate Embarq the costs of work performed to Commingle UNEs or UNE combinations with wholesale services. Each component of the commingled facility, either UNE or wholesale service, will be billed at the UNE or wholesale service rate for that component, plus applicable non- recurring charges. Embarq will not ratchet price individual components; that is, Embarq will not reflect a combination of UNE and wholesale rates for the same component. Wholesale service rates will be per the appropriate Tariff, including any applicable resale discounts pursuant to this Agreement.
52. LINE SPLITTING
52.1. Line Splitting
52.1.1. Line Splitting is an arrangement between two carriers where one carrier provides the voice services and another carrier provides advanced services over an unbundled loop.
52.1.2. Whenever CLEC purchases the unbundled loop, CLEC shall control the entire loop spectrum.
52.1.3. Embarq shall institute procedures to allow CLEC or another carrier to order HFS data capabilities on a UNE loop.
52.2. When either CLEC or the other carrier orders Line Splitting using CLEC's OCN, CLEC will be billed the charges for the Line Splitting service. When the other carrier orders Line Splitting using its own OCN, Embarq will bill the other carrier for the Line Splitting charges.
53. UNE COMBINATIONS
53.1. CLEC may order UNEs either individually or in the combinations, including EEL as specifically set forth in this Section of the Agreement.
53.2. General Terms and Conditions
53.2.1. Embarq will allow CLEC to order each UNE individually in order to permit CLEC to combine UNEs with other UNEs obtained from Embarq as provided for in this Agreement, or with network components provided by itself or by third parties to provide Telecommunications Services to its end users, if the requested combination is technically feasible and would not impair the ability of other carriers to obtain access to other unbundled network elements or to interconnect with Embarq’s network or in combination with any other Network Elements that are currently combined in Embarq’s Network. Upon request, Embarq will perform the functions necessary to combine UNEs, even if those elements are not ordinarily combined in Embarq’s network, if the requested combination is technically feasible and would not impair the ability of other carriers to obtain access to other unbundled Network Elements or to interconnect with Embarq’s network. CLEC will compensate Embarq the costs of work performed to combine the requested UNEs. Any request by CLEC for Embarq to provide combined UNEs that are not otherwise specifically provided for under this Agreement will be made in accordance with the BFR process described in
Section Error! Reference source not found. and made available to CLEC upon implementation by Embarq of the necessary operational modifications.
53.3. The provisioning of combinations, including EEL, is limited to existing facilities and Embarq is not obligated to construct additional facilities to accommodate any request by CLEC.
53.4. Specific Combinations and Pricing
53.4.1. In order to facilitate the provisioning of EELs, Embarq shall support the ordering and provisioning of this specific combination as set forth below.
53.5. Embarq Offers the Following Combinations of Network Elements
53.5.1. Embedded Base of Voice Unbundled Network Element Platform (UNE-P). VOICE UNE-P is the existing combination of the NID, Loop, Local Circuit Switching, Shared Transport, and Local Tandem Switching network elements.
(a) Embarq will continue to provide existing combinations of the NID, Loop, Local Circuit Switching, Local Switch Port, Shared Transport, and Local Tandem Switching (where Embarq is the provider of Shared Transport and Local Tandem Switching) unbundled network elements to provide VOICE UNE-P, to
the extent Embarq is required to provide unbundled local switching as set forth in Section 49 above, at the applicable recurring charges and non-recurring charges as specified in Table One for VOICE UNE-P plus the applicable Service Order Charge until March 10, 2006. Embarq will also bill CLEC for applicable Usage Data Recording and Transmission Charges as indicated in Table One.
(b) Until such time as Embarq can bill the recurring charges for usage based VOICE UNE-P elements (Local Circuit Switching, Shared Transport, Local Tandem Switching), these charges will be billed to CLEC at the recurring flat rate charge reflected in Table One. Upon the implementation of the necessary operational modifications, Embarq will convert from billing CLEC based on this flat rated monthly charge to applicable usage based charges for the VOICE UNE-P elements.
(c) Reciprocal compensation for UNE-P Local Traffic and ISP-Bound Traffic that originates and terminates within the same switch shall be on a bill and keep basis.
(d) Embarq will provide originating and terminating access records to CLEC for access usage over UNE-P. CLEC will be responsible for billing the respective originating and/or terminating access charges directly to the IXC. Embarq will bill CLEC at the rate set forth in Table One for these records.
(e) Embarq will provide CLEC toll call records that will allow it to bill its end users for toll charges. Such record exchange will be in industry standard EMI format as the charges set forth in Table One. Any non-standard requested format would be handled through the BFR process as set forth in Section Error! Reference source not found. of this Agreement. Embarq will bill CLEC at the rate set forth in Table One for these records.
53.5.2. EEL is the combination of the NID, Loop, and Dedicated Transport network elements.
(a) Embarq will offer the combination of unbundled loops with wholesale services and unbundled Dedicated Transport, where Embarq is required to provide unbundled Dedicated Transport and Local Loops, to provide EELs at the applicable recurring and non-recurring charges as specified in Table One for Loops, Dedicated Transport, and where applicable, Multiplexing. Recurring and nonrecurring charges, including but not limited to cross connect charges and Service Order Charges will apply. Embarq will cross-connect unbundled 2- or
4-wire analog or 2-wire digital Loops to unbundled voice grade DS1 or DS3 Dedicated Transport facilities for CLEC’s provision of circuit switched telephone exchange service to CLEC’s end users.
(b) Multiplexing shall be provided as necessary as part of Dedicated Transport.
53.5.3. In order to obtain the EEL combinations below, a requesting CLEC must provide certification that it satisfies the service eligibility criteria for each circuit as set forth below. For existing EELs, CLEC must recertify compliance with the EELs criteria within thirty (30) days of the Effective Date of this Agreement. CLEC must continue to be in compliance with the service eligibility criteria for as long as CLEC continues to receive the services in this Section. Embarq will offer the following EEL Combinations:
(a) Unbundled DS1 Loop in combination with UNE DS1 Dedicated Transport.
(b) Unbundled DS1 Loop commingled with dedicated DS1 transport wholesale service.
(c) Unbundled DS1 Loop in combination with UNE DS3 Dedicated Transport.
(d) Unbundled DS1 Loop commingled with dedicated DS3 transport wholesale service.
(e) Unbundled DS3 Loop in combination with UNE DS3 Dedicated Transport.
(f) Unbundled DS3 Loop commingled with dedicated DS3 transport wholesale service.
(g) Unbundled DS1 Dedicated Transport commingled with DS1 channel termination.
(h) Unbundled DS3 Dedicated Transport commingled with DS1 channel termination service.
(i) Unbundled DS3 Dedicated Transport commingled with DS3 channel termination service.
53.5.4. EEL Eligibility Criteria
(a) CLEC must have state certification to provide local voice service in the area being served or, in the absence of a state certification requirement, CLEC must have complied with registration, tariffing, filing fee, or other regulatory requirement s applicable to the provision of local voice service in the area served;
(b) The following criteria must be satisfied for each combined circuit, including each DS1 circuit, each DS1 EEL, and each DS1-equivalent circuit on a DS3 EEL:
(i) Each circuit to be provided to each CLEC customer must be assigned one local number prior to the provision of service over the circuit;
(ii) Each DS1-equivalent circuit on a DS3 EEL must have its own local number assignment, so that each DS3 has up to twenty-eight (28) local voice numbers assigned to it;
(iii) Each circuit to be provided to each customer must provide 911 or E911 capability prior to the provision of service over the circuit;
(iv) Each circuit to be provided to each customer must terminate into a collocation that meets one of the following requirements:
(A) a collocation established pursuant to §251(c)(6) of the Act and located at Embarq’s premises within the same LATA as the CLEC’s customer’s premises, when Embarq is not the collocator; or
(B) a collocation located at a third party’s premises within the same LATA as the CLEC’s customer’s premises, when Embarq is the collocator.
(v) For each twenty-four (24) DS1 EELs or other facilities having equivalent capacity, CLEC must maintain at least one active DS1 local service interconnection trunk and CLEC is required to transmit the calling party’s number in connection with calls exchanged over each trunk. Where CLEC does not establish an interconnection arrangement with Embarq for the meaningful exchange of Local Traffic that flows in both directions, such interconnection arrangement shall not satisfy this criteria, and
(vi) Each circuit to be provided to each customer will be served by a switch capable of switching local voice traffic.
(c) Embarq has the right, upon thirty (30) Days notice, to audit CLEC’s compliance with the service eligibility criteria defined by the FCC and as set forth above. Embarq will hire and pay for an independent auditor to perform the audit. CLEC will reimburse Embarq if the audit report concludes that CLEC failed to materially comply with the service eligibility criteria. Embarq may request one audit in a calendar year. In the instance of non-compliance, CLEC shall true-up any difference in payments, convert the non-compliant circuit to the appropriate service and make accurate payments going forward. These audit rights are in addition to Embarq’s audit rights in Part B of this Agreement.
54. MODIFICATIONS TO EMBARQ’S EXISTING NETWORK
54.1. Modifications to Unbundled Loop
54.1.1. Embarq will make routine network modifications to unbundled loop facilities used by CLEC where the requested loop facility has already been constructed. Embarq will perform routine network modifications to unbundled loop facilities in a nondiscriminatory fashion, without regard to whether the loop facility being accessed was constructed on behalf, or in accordance with the specifications, of any carrier. CLEC will compensate Embarq for the costs of such routine network modifications to unbundled loop facilities to the extent the costs are not recovered in the unbundled loop rates in accordance with Table One or Embarq will provide a price quote via the ICB process.
(a) In the case of unbundled loop facilities, a routine network modification is an activity that Embarq regularly undertakes for its own customers. Routine network modifications may include, but are not limited to, rearranging or splicing of cable; adding an equipment case; adding a doubler or repeater; adding a smart jack; installing a repeater shelf; adding a line card; deploying a new multiplexer or reconfiguring an existing multiplexer and attaching electronic and other equipment that Embarq ordinarily attaches to a DS1 Loop to activate such loop for its own customer. Routine network modifications may entail activities such as accessing manholes, deploying bucket trucks to reach aerial cable, and installing equipment casings. Routine network modifications do not include the construction of new loop facilities or the installation of new aerial or buried cable for CLEC.
54.2. Modifications to Dedicated Transport
54.2.1. Embarq will make routine network modifications to unbundled dedicated transport facilities used by CLEC where the requested Dedicated Transport facilities have already been constructed. Embarq will perform the routine network modifications to unbundled Dedicated Transport facilities in a nondiscriminatory fashion, without regard to whether the facility being accessed was constructed on behalf, or in accordance with the specifications, of any carrier. CLEC will compensate Embarq for the costs of such routine network modifications to unbundled Dedicated Transport facilities to the extent the costs are not recovered in the unbundled Dedicated Transport rates. Embarq will provide routine network modifications at the rates on Table One or Embarq will provide a price quote vis the ICB process.
(a) In the case of unbundled Dedicated Transport facilities, a routine network modification is an activity that Embarq regularly undertakes for its own customers. Routine network modifications may include, but are not limited to, rearranging or splicing of cable; adding an equipment case; adding a doubler or repeater; installing a repeater shelf; and deploying a new multiplexer or reconfiguring an existing multiplexer. Routine network modifications also include activities needed to enable CLEC to light a Dark Fiber transport facility. Routine network modifications may entail activities such as accessing manholes, deploying bucket trucks to reach aerial cable, and installing equipment casings. Routine network modifications do not include the installation of new aerial or buried cable for CLEC.
54.3. Loop Conditioning
54.3.1. Conditioned loops are loops from which excessive bridge taps, load coils, low-pass filters, range extenders, and similar devices have been removed to enable the delivery of high-speed switched wireline telecommunications capability, including DSL. Embarq will condition loops at CLEC’s request and will assess charges for loop conditioning in accordance with the prices listed in Table One. Embarq recommends that CLEC utilize the Loop Make-Up process in Section Error! Reference source not found. prior to submitting orders for loops intended for advanced services.
54.4. Embarq is not obligated to build TDM capability into new packet-based networks or into existing packet-based networks that never had TDM capability. This includes packet-based networks that incorporate a packet to TDM format translation to connect to end user customer provided equipment.
PART F – INTERCONNECTION
55. LOCAL INTERCONNECTION TRUNK ARRANGEMENT
55.1. The Parties shall reciprocally terminate Local Traffic and IntraLATA/InterLATA toll calls originating on the other Party’s network as follows:
55.1.1. The Parties shall make available to each other two-way trunks for the reciprocal exchange of combined Local Traffic, and non-equal access IntraLATA toll traffic. Neither Party is obligated under this Agreement to order reciprocal trunks or build facilities in the establishment of interconnection arrangements for the delivery of Internet traffic. The Party serving the Internet service provider shall order trunks or facilities from the appropriate tariff of the other Party for such purposes and will be obligated to pay the full cost of such facility.
(a) The Parties agree to use two-way trunks (one-way trunks directionalized in each direction). Upon mutual agreement, the Parties will transition specified trunks from directionalized two-way trunks to bi-directional trunks, subject to any engineering, billing or other constraints, and subject to compensation for the cost of undertaking the conversion of such trunks.
55.1.2. Separate two-way trunks will be made available for the exchange of equal-access InterLATA or IntraLATA interexchange traffic.
55.1.3. Separate trunks will be utilized for connecting CLEC’s switch to each 911/E911 tandem.
55.2. Direct Interconnection Requirements
55.2.1. Point of Interconnection. CLEC must establish a minimum of one POI within each LATA, at any technically feasible point, on Embarq’s network. In addition, CLEC shall establish additional POIs under the following circumstances:
(a) To the extent Embarq’s network contains multiple tandems in the LATA, CLEC must establish a POI at each tandem where it wishes to exchange (i.e., receive or terminate) traffic with Embarq.
(b) CLEC must establish a POI at an Embarq end office when total traffic volumes exchanged between that particular Embarq end office and CLEC exceeds a DS1 equivalent.
(c) CLEC must establish a POI at any Embarq end office that subtends a non- Embarq tandem.
55.2.2. CLEC will be responsible for engineering and maintaining its network on its side of the POI. Embarq will be responsible for engineering and maintaining its network on its side of the POI. Each Party is financially responsible for transport on its side of the POI.
55.2.3. Each Party is financially responsible for transporting its originated traffic to the POI.
55.2.4. When the Parties choose to interconnect at a mid-span meet, CLEC and Embarq will jointly provision the facilities that connect the two networks. Embarq will be the “controlling carrier” for purposes of MECOD guidelines, as described in the joint implementation plan. Embarq will provide fifty percent (50%) of the facilities or to its
exchange boundary, whichever is less. The construction of new facilities for a mid- span meet is only applicable when traffic is roughly balanced. Notwithstanding any provision in this Agreement to the contrary, when the Parties interconnect using a mid- span meet, each Party will be financially responsible for the facilities on its side of the mid-span meet and will not bill the other Party for any portion of those facilities.
55.2.5. If third party (i.e., Competitive Access Provider or “CAP”) leased facilities are used for interconnection, the POI will be defined as the Embarq office in which the third party’s leased circuit terminates.
55.2.6. If CLEC elects to lease any portion of the transport facility from Embarq or if CLEC chooses to interconnect with Embarq using a meet-point arrangement (i.e., facilities jointly provisioned by Embarq and another LEC), CLEC will order those facilities that are wholly within Embarq’s serving territory from Embarq’s access tariff.
55.3. Technical Requirements for Interconnection
55.3.1. Interconnection at the Embarq Tandem
(a) Interconnection to Embarq Tandem Switch(es) will provide CLEC local interconnection for local service purposes to the Embarq end offices and NXXs which subtend that tandem(s), where local trunking is provided, and access to the toll network.
(b) Interconnection to an Embarq Tandem for transit purposes will provide access to telecommunications carriers which are connected to that Tandem Switch.
(c) Where an Embarq Tandem Switch also provides End-Office Switch functions, interconnection to an Embarq tandem serving that exchange will also provide CLEC access to Embarq’s end offices.
(d) the CLEC is responsible for provisioning its traffic to interface into Embarq's switch port at the DS1 level, including any muxing necessary for such purposes.
55.3.2. Interconnection at the Embarq End Office
(a) Interconnection to Embarq End Office Switch will provide CLEC local interconnection for local service purposes to the Embarq NXX codes served by that end office and any Embarq NXXs served by remotes that subtend those End Offices.
(b) the CLEC is responsible for provisioning its traffic to interface into Embarq's switch port at the DS1 level, including any muxing necessary for such purposes.
56. INTERCARRIER COMPENSATION
56.1. Compensation for Local Traffic Transport and Termination
56.1.1. The transport and termination charges for Local Traffic flowing through a POI shall be as follows:
(a) In a mid-span meet arrangement, when calls from CLEC are terminating on Embarq’s network through the Embarq Tandem Switch, CLEC will pay Embarq a charge for Tandem Switching, common transport to the end office, and end- office termination.
(b) When the POI is at the Embarq Tandem Switch, CLEC shall pay a charge for Tandem Switching, common transport to the end office and end-office termination.
(c) Charges billed to Embarq by CLEC for the transport and termination of Local Traffic will be equal to those that Embarq assesses the CLEC for the same services. Where CLEC is interconnected at an Embarq tandem and Embarq delivers its traffic to CLEC directly from an end office, Embarq shall pay CLEC end office termination. Where CLEC is interconnected at an Embarq tandem and Embarq delivers its traffic to CLEC from the tandem and the CLEC switch serves a geographical area greater than or equal to the area served by the Embarq tandem, Embarq shall pay CLEC for Tandem Switching, common transport, and end-office termination. If the CLEC switch serves a geographical area less than the area served by the Embarq tandem, Embarq shall pay CLEC end-office termination.
(d) To validate the geographic area CLEC must provide documentation supporting the following:
(i) that CLEC’s switch serves a geographic area that is roughly the same size as the area served by the Embarq Tandem Switch;
(ii) that CLEC has obtained NPA/NXX codes to serve the exchanges within the geographic area; and,
(iii) that CLEC is serving the area using its own switch with its own facilities or a combination of its own facilities and leased facilities connected to its collocation arrangements.
(e) Where direct end office trunks are established, for CLEC-originated calls, CLEC shall pay Embarq end-office termination. For Embarq originated traffic terminating to CLEC at that end office, compensation payable by Embarq shall be the same as that detailed in Section 56.1.1 above.
56.2. The rates to be charged for the exchange of Local Traffic and ISP-Bound Traffic are set forth in Table One and shall be applied consistent with the provisions of Part F of this Agreement.
56.2.1. The Parties agree that by executing this Agreement and carrying out the intercarrier compensation rates, terms and conditions herein, neither Party waives any of its rights, and expressly reserves all of its rights, under the Order on Remand and Report and Order, FCC 01-131, CC Dockets No. 96-98 and 99-68, adopted April 18, 2001 (the “ISP Compensation Order”), including but not limited to Embarq’s option to invoke on a date specified by Embarq the FCC's ISP interim compensation regime, after which date ISP- bound traffic will be subject to the FCC's prescribed interim compensation regime including the terminating compensation rates, and other terms and conditions. CLEC agrees that on the date designated by ILEC, the Parties will begin billing Reciprocal Compensation to each other at the rates, terms and conditions specified in the FCC's ISP Compensation Order, unless the Parties are exchanging traffic (Local Traffic and/or ISP- Bound traffic) at Bill and Keep, such Bill and Keep arrangement shall continue.
56.3. Compensation for the termination of toll traffic and the origination of 800 traffic between the interconnecting parties shall be based on the applicable access charges in accordance with FCC and Commission Rules and Regulations and consistent with the provisions of Part F of this
Agreement. If CLEC is acting as an IXC and a competitive local exchange carrier, CLEC must have a unique CIC for each type of service order. Specifically, CLEC must have two CICs, one that is used for ordering IXC facilities for interexchange toll traffic and one that is used to order facilities for local exchange traffic.
56.4. Embarq-originated traffic terminating to a CLEC NPA-NXX which is assigned to an end user physically located outside the local calling area in which the NPA/NXX is homed (Virtual NXX) is not Local for purposes of intercarrier compensation and Embarq's originating access rates shall apply. The Parties represent and warrant that they are not exchanging Virtual NXX traffic as of the Effective Date of this Agreement. Either Party may perform traffic studies at any time. In the event that the traffic study indicates that there is VNXX traffic; the Parties will implement a percentage of traffic that shall be deemed to occur via a VNXX arrangement that will apply on a retrospective basis to the Effective Date of the Agreement. If the traffic studies thereafter indicate that the percentage should be changed by Embarq; the correct percentage will be implemented on a prospective basis without amending the agreement.
56.5. Voice calls that are transmitted, in whole or in part, via the public Internet or a private IP network (VoIP) shall be compensated in the same manner as voice traffic (e.g., reciprocal compensation, interstate access and intrastate access).
56.6. A call placed on a non-local basis (e.g., a toll call or 8yy call) to an ISP shall not be treated as ISP- Bound Traffic for compensation purposes. The Parties agree that, to the extent such "non-Local" ISP calls are placed, that the rates, terms and conditions for IntraLATA and/or InterLATA calling shall apply, including but not limited to rating and routing according to the terminating parties' Exchange Access intrastate and/or interstate tariffs.
56.7. CLEC will identify the Percent Local Usage (PLU) factor on each interconnection order to identify its “Local Traffic,” as defined herein, for reciprocal compensation purposes. Embarq may request CLEC’s traffic study documentation of the PLU at any time to verify the factor, and may compare the documentation to studies developed by Embarq. Should the documentation indicate that the factor should be changed by Embarq; the Parties agree that any changes will be retroactive to traffic for the previous two years. Should the documentation indicate it is warranted such change in the factor may be back to the effective date of the Agreement. For non-local traffic, the Parties agree to exchange traffic and compensate one another based on the rates and elements included in each party’s access tariffs. CLEC will transmit calling party number (CPN) as required by FCC rules (47 CFR 64.1601).
56.7.1. To the extent technically feasible, each Party will transmit calling party number (CPN) for each call being terminated on the other's network. If the percentage of calls transmitted with CPN is greater than ninety percent (90%), all calls exchanged without CPN will be billed as local or intrastate in proportion to the MOUs of calls exchanged with CPN. If the percentage of calls transmitted with CPN is less than ninety percent (90%), all calls transmitted without CPN will be billed at intrastate access rates.
56.8. To the extent Embarq identifies, either through its own recording capabilities or through call detail records provided by another carrier, Local Traffic that is originated by CLEC and terminated indirectly to Embarq through an intermediary carrier (transit carrier), Embarq shall bill CLEC terminating compensation according to Section Error! Reference source not found.. In addition, CLEC will reimburse Embarq for any transit charges billed by the intermediary carrier for Local Traffic or ISP-bound Traffic originated by Embarq.
56.9. Each Party shall take steps to ensure that all traffic that it delivers to the receiving Party include a call record, and that such call records are transmitted intact to the receiving Party. Neither Party shall: (1) remove call records, (ii) alter or replace call records, (ii) alter or replace jurisdictional information or (iv) insert or add any call record information except as specifically allowed by industry guidelines or as mutually agreed to by the Parties. Using reasonable efforts and to the
extent technically feasible, each Party also shall undertake steps to ensure that any service provider who hands off traffic for delivery to the other Party does not: (i) remove call records, (ii) alter or replace call records, (ii) alter or replace jurisdictional information or (iv) insert or add any call record information except as specifically allowed by industry guidelines or as mutually agreed to by the Parties. Neither Party shall knowingly and intentionally (a) strip or alter call records to disguise the jurisdiction of the a call or (b) permit third parties to do so for traffic the Party delivers to the other Party.
56.10. Either Party may request an audit of the traffic types exchanged between the Parties. Each Party will provide upon request traffic study documentation of traffic being delivered to the other Party. Audit periods may include the period beginning with the month after the last audit or the Effective Date of the Agreement through, and including, the month prior to the audit request. Traffic study documentation can include records produced either from Embarq or CLEC internal recording and monitoring systems or from third party vendors that record intercarrier traffic SS7 call records. These audit rights are in addition to the audit rights in Part A of this Agreement
57. SIGNALING NETWORK INTERCONNECTION
57.1. Embarq will offer interconnection to its signaling transfer points (STPs) for CLEC switches which connect to Embarq’s STPs via “A” links or for CLEC’s “B” or “D” links which are dedicated to the transport of signaling for local interconnection. Embarq’s signaling service will be charged at tariff rates to CLECs that order such service.
57.2. Signaling protocol. The parties will interconnect their networks using SS7 signaling where technically feasible and available as defined in FR 905 Telcordia Standards including ISDN User Part (ISUP) for trunk signaling and TCAP for CCS-based features in the interconnection of their networks. All Network Operations Forum (NOF) adopted standards shall be adhered to.
57.3. Standard interconnection facilities shall be Extended Superframe (ESF) with B8ZS line code. Where ESF/B8ZS is not available, CLEC will use other interconnection protocols on an interim basis until the standard ESF/B8ZS is available. Embarq will provide anticipated dates of availability for those areas not currently ESF/B8ZS compatible.
57.4. Where CLEC is unwilling to utilize an alternate interconnection protocol, CLEC will provide Embarq an initial forecast of 64 Kbps clear channel capability (“64K CCC”) trunk quantities within thirty (30) Days of the Effective Date consistent with the forecasting agreements between the parties. Upon receipt of this forecast, the parties will begin joint planning for the engineering, procurement, and installation of the segregated 64K CCC Local Interconnection Trunk Groups, and the associated ESF facilities, for the sole purpose of transmitting 64K CCC data calls between CLEC and Embarq. Where additional equipment is required, such equipment would be obtained, engineered, and installed on the same basis and with the same intervals as any similar growth job for IXC, CLEC, or Embarq internal customer demand for 64K CCC trunks.
57.5. Signaling Systems
57.5.1. Signaling Link Transport
(a) Signaling Link Transport is a set of two or four dedicated 56 Kbps transmission paths between CLEC-designated Signaling Points of Interconnection (SPOI) that provides appropriate physical diversity and a cross connect at an Embarq STP site.
(b) Technical Requirements. Signaling Link transport shall consist of full duplex mode 56 Kbps transmission paths.
57.5.2. Signaling Transfer Points (STPs)
STPs provide functionality that enables the exchange of SS7 messages among and between switching elements, databases and third party signaling transfer points.
57.6. Technical Requirements. STPs provide interconnection to the functions of signaling networks or to third party SS7 networks connected to the Embarq SS7 network. These functions include:
57.6.1. Embarq local switching or Tandem Switching;
57.6.2. Embarq Service Control Points (SCPs)/Databases if arranged for under separate agreements;
57.6.3. Third-party local or Tandem Switching systems subject to any additional conditions or terms of the Third Party and
57.6.4. Third party provider STPs subject to any additional conditions or terms of the Third Party.
57.7. Interface Requirements. Embarq shall provide the following STP options to connect CLEC or CLEC-designated local switching systems or STPs to the Embarq SS7 network:
57.7.1. An A-link interface from CLEC local switching systems; and
57.7.2. B- or D-link interface from CLEC STPs.
57.7.3. Each type of interface shall be provided by one or more sets (layers) of signaling links, as follows:
(a) An A-link layer shall consist of two (2) links,
(b) A B- or D-link layer shall consist of four (4) links,
57.8. Signaling Point of Interconnection (SPOI) for each link shall be located at a cross-connect element, such as a DSX-1, in the Central Office (CO) where the Embarq STP is located. Interface to Embarq’s STP shall be the 56kb rate. The 56kb rate can be part of a larger facility, and CLEC shall pay multiplexing/demultiplexing and channel termination, plus mileage of any leased facility.
58. TRUNK FORECASTING
58.1. CLEC shall provide forecasts for traffic utilization over trunk groups. Orders for trunks that exceed forecasted quantities for forecasted locations will be accommodated as facilities and/or equipment are available. Embarq shall make all reasonable efforts and cooperate in good faith to develop alternative solutions to accommodate orders when facilities are not available. Company forecast information must be provided by CLEC to Embarq twice a year. The initial trunk forecast meeting should take place soon after the first implementation meeting. A forecast should be provided at or prior to the first implementation meeting. The semi-annual forecasts shall project trunk gain/loss on a monthly basis for the forecast period, and shall include:
58.1.1. Semi-annual forecasted trunk quantities (which include baseline data that reflect actual Tandem and end office Local Interconnection and meet point trunks and Tandem- subtending Local Interconnection end office equivalent trunk requirements) for no more than two years (current plus one year);
58.1.2. The use of Common Language Location Identifier (CLLI-MSG), which are described in Telcordia documents BR 795-100-100 and BR 795-400-100;
58.1.3. Description of major network projects that affect the other Party will be provided in the semi-annual forecasts. Major network projects include but are not limited to trunking or network rearrangements, shifts in anticipated traffic patterns, or other activities by CLEC that are reflected by a significant increase or decrease in trunking demand for the following forecasting period.
58.1.4. Parties shall meet to review and reconcile the forecasts if forecasts vary significantly.
58.2. CLEC shall provide an updated trunk forecast when ordering or requesting additional trunks from Embarq anytime after the initial trunk implementation.
58.3. Each Party shall provide a specified point of contact for planning forecasting and trunk servicing purposes.
58.4. Trunking can be established to Tandems or end offices or a combination of both via either one- way or two-way trunks. Trunking will be at the DS0, DS1, DS3/OC3 level, or higher, as agreed upon by CLEC and Embarq.
58.5. The parties agree to abide by the following if a forecast cannot be agreed to: local interconnection trunk groups will be provisioned to the higher forecast. A blocking standard of one percent (1%) during the average busy hour shall be maintained. Should the Parties not agree upon the forecast, and the Parties engineer facilities at the higher forecast, the Parties agree to abide by the following:
58.5.1. In the event that CLEC over-forecasts its trunking requirements by twenty percent (20%) or more, and Embarq acts upon this forecast to its detriment, Embarq may recoup any actual and reasonable expense it incurs.
58.5.2. The calculation of the twenty percent (20%) over-forecast will be based on the number of DS1 equivalents for the total traffic volume to Embarq.
58.5.3. Expenses will only be recouped for non-recoverable facilities that cannot otherwise be used at any time within twelve (12) months after the initial installation for another purpose including but not limited to: other traffic growth between the Parties, internal use, or use with another party.
58.6. Grade of Service. An overall blocking standard of one percent (1%) during the average busy hour, as defined by each Party’s standards, for final trunk groups between a CLEC end office and an Embarq access Tandem carrying meet point traffic shall be maintained. All other Tandem trunk groups are to be engineered with a blocking standard of one percent (1%). Direct end office trunk groups are to be engineered with a blocking standard of one percent (1%).
58.7. Trunk Servicing. Orders between the Parties to establish, add, change or disconnect trunks shall be processed by use of an ASR, RASR or other industry standard format as specified by Embarq for trunk ordering.
59. NETWORK MANAGEMENT
59.1. Protective Protocols. Either Party may use protective network traffic management controls such as 7-digit and 10-digit code gaps on traffic toward each other’s network, when required to protect the public switched network from congestion due to facility failures, switch congestion or failure or focused overload. CLEC and Embarq will immediately notify each other of any protective control action planned or executed.
59.2. Expansive Protocols. Where the capability exists, originating or terminating traffic reroutes may be implemented by either party to temporarily relieve network congestion due to facility failures
or abnormal calling patterns. Reroutes will not be used to circumvent normal trunk servicing. Expansive controls will only be used when mutually agreed to by the parties.
59.3. Mass Calling. CLEC and Embarq shall cooperate and share pre-planning information, where available, regarding cross-network call-ins expected to generate large or focused temporary increases in call volumes, to prevent or mitigate the impact of these events on the public switched network.
60. USAGE MEASUREMENT
60.1. Each Party shall calculate terminating interconnection minutes of use based on standard AMA recordings made within each Party’s network, these recordings being necessary for each Party to generate bills to the other Party. In the event either Party cannot measure minutes terminating on its network where technically feasible, the other Party shall provide the measuring mechanism or the Parties shall otherwise agree on an alternate arrangement.
60.2. Measurement of minutes of use over Local Interconnection trunk groups shall be in actual conversation seconds. The total conversation seconds over each individual Local Interconnection trunk group will be totaled for the entire monthly bill period and then rounded to the next whole minute.
60.3. Prior to the commencement of billing for interconnection, each Party shall provide to the other, the PLU of the traffic terminated to each other over the Local Interconnection trunk groups.
60.3.1. The Parties agree to review the accuracy of the PLU on a regular basis. If the initial PLU is determined to be inaccurate by more than twenty percent (20%), the Parties agree to implement the new PLU retroactively to the Effective Date of the contract.
61. RESPONSIBILITIES OF THE PARTIES
61.1. Embarq and CLEC will review engineering requirements consistent with the Implementation Plan described in Part B, Part C, Part F and as otherwise set forth in this Agreement.
61.2. CLEC and Embarq shall share responsibility for all Control Office functions for Local Interconnection Trunks and Trunk Groups, and both parties shall share the overall coordination, installation, and maintenance responsibilities for these trunks and trunk groups.
61.3. CLEC and Embarq shall:
61.3.1. Provide trained personnel with adequate and compatible test equipment to work with each other’s technicians.
61.3.2. Notify each other when there is any change affecting the service requested, including the due date.
61.3.3. Coordinate and schedule testing activities of their own personnel, and others as applicable, to ensure its interconnection trunks/trunk groups are installed per the interconnection order, meet agreed-upon acceptance test requirements, and are placed in service by the due date.
61.3.4. Perform sectionalization to determine if a trouble is located in its facility or its portion of the interconnection trunks prior to referring the trouble to each other.
61.3.5. Advise each other’s Control Office if there is an equipment failure which may affect the interconnection trunks.
61.3.6. Provide each other with a trouble reporting/repair contact number that is readily accessible and available twenty-four (24) hours/seven (7) days a week. Any changes to this contact arrangement must be immediately provided to the other party.
61.3.7. Provide to each other test-line numbers and access to test lines.
61.3.8. Cooperatively plan and implement coordinated repair procedures for the meet point and Local Interconnection trunks and facilities to ensure trouble reports are resolved in a timely and appropriate manner.
PART G – LOCAL NUMBER PORTABILITY
62.1. Upon implementation of LNP, both Parties agree to conform and provide such LNP pursuant to FCC regulations and compliance with the Industry Forum Guidelines. To the extent consistent with the FCC and Industry Guidelines as amended from time to time, the requirements for LNP shall include the following:
62.2. End users must be able to change local service providers and retain the same telephone number(s) within the serving rate center utilizing the portability method as defined by the FCC.
62.3. The LNP network architecture shall not subject Parties to any degradation of service in any relevant measure, including transmission quality, switching and transport costs, increased call set- up time and post-dial delay.
Parties agree that when an NXX is defined as portable, it shall also be defined as portable in all LNP capable switches serving the rate center.
When an end user ports to another service provider and has previously secured a reservation of line numbers from the donor provider under contract or tariff for possible activation at some future point, these reserved but inactive numbers shall port along with the active numbers being ported by the end user.
NXX Availability. Not all NXXs in each CO may be available for porting.
LERG Reassignment. Portability for an entire NXX shall be provided by utilizing reassignment of the NXX to CLEC through the LERG.
Coordination of service order work outside normal business hours (8:00 a.m. to 5:00 p.m.) shall be at requesting Party’s expense. Premium rates will apply for service order work performed outside normal business hours, weekends, and holidays.
Mass Calling Events. Parties will notify each other at least seven (7) Days in advance where ported numbers are utilized. Parties will only port mass calling numbers using switch translations and a choke network for call routing. Porting on mass calling numbers will be handled outside the normal porting process and comply with any applicable federal regulatory requirements or industry guidelines developed for mass calling numbers.
63.1. An Interconnection Agreement (or Memorandum of Understanding, or Porting Agreement) detailing conditions for LNP must be in effect between the Parties prior to testing.
63.2. Testing and operational issues will be addressed in the implementation plans as described in Part B, Section 33 of the agreement.
63.3. CLEC must be NPAC certified and have met Embarq testing parameters prior to activating LNP. After initial LNP implementation by a CLEC/CMRS provider testing and porting will be done at CLEC’s expense.
63.4. Parties will cooperate to ensure effective maintenance testing through activities such as routine testing practices, network trouble isolation processes and review of operational elements for translations, routing and network fault isolation.
63.5. Parties shall cooperate in testing performed to ensure interconnectivity between systems. All LNP providers shall notify each connected provider of any system updates that may affect the CLEC or Embarq network. Each LNP provider shall, at each other’s request, jointly perform tests to validate the operation of the network. Additional testing requirements may apply as specified by this Agreement or in the Implementation Plan.
64. ENGINEERING AND MAINTENANCE
64.1. Each LNP provider will monitor and perform effective maintenance through testing and the performance of proactive maintenance activities such as routine testing, development of and adherence to appropriate network trouble isolation processes and periodic review of operational elements for translations, routing and network faults.
64.2. It will be the responsibility of the Parties to ensure that the network is stable and maintenance and performance levels are maintained in accordance with state commission requirements. It will be the responsibility of the Parties to perform fault isolation in their network before involving other providers.
64.3. Additional engineering and maintenance requirements shall apply as specified in this Agreement or the Implementation Plan.
65.1. When a subscriber ports to another service provider, the donor provider shall unlock the information in the 911/ALI database. The porting provider is responsible for updating the 911 tandem switch routing tables and 911/ALI database to correctly route, and provide accurate information to the PSAP call centers.
65.2. Prior to implementation of LNP, the Parties agree to develop, implement, and maintain efficient methods to maintain 911 database integrity when a subscriber ports to another service provider. The Parties agree that the customer shall not be dropped from the 911 database during the transition.
66. BILLING FOR PORTED NUMBERS
66.1. When an IXC terminates an InterLATA or IntraLATA toll call to either party’s local exchange customer whose telephone number has been ported from one party to the other, the parties agree that the party to whom the number has been ported shall be entitled to revenue from the IXC for those access elements it actually provides including, but not limited to end office switching, local transport, RIC, and CCL. The party from whom the number has been ported shall be entitled to receive revenue from the IXC for those access elements it actually provides including, but not limited to any entrance facility fees, access tandem fees and appropriate local transport charges.
66.2. Non-Payment. Customers lose the right to the ported telephone number upon suspension of service. Embarq will not port telephone numbers of customers whose service has been suspended.
PART H – LINE SHARING
67. LINE SHARING
67.1. General Terms
67.1.1. Under this Agreement, Embarq will not provide access to the HFPL for line sharing by CLEC except pursuant to the following terms and conditions.
67.1.2. For HFPLs that are in service prior to 10/02/03, Embarq will continue to bill HFPL at the rate that was effective for that arrangement on 10/02/03 as long as that HFPL remains in service to the particular CLEC end-user premises.
67.1.3. For HFPL ordered 10/02/03 to 10/01/04 and remaining in service to the particular CLEC end-user premises during the period 10/01/04 and 10/01/05, the rate billed for HFPL will be fifty percent (50%) of the xDSL capable UNE Loop rate found in Table 1.
67.1.4. For HFPL ordered 10/02/03 to 10/01/04 and remaining in service to the particular CLEC end-user premises during the period 10/02/05 and 10/01/06, the rate billed for HFPL will be seventy-five (75%) of the xDSL capable UNE Loop rate found in Table 1.
67.1.5. After 10/01/06, CLEC must order a stand-alone loop or negotiate a line splitting arrangement with another Telecommunications Carrier.
67.2. Embarq Line Sharing provided HFPL to CLEC only those instances when Embarq is the provider of analog circuit-switched voice band service on that same Copper Loop to the same End User.
67.3. In the event that the end user being served by CLEC via HFPL terminates its Embarq-provided retail voice service, or when Embarq provided retail voice service is disconnected due to “denial for non-pay,” Embarq shall provide reasonable notice to CLEC prior to disconnect. CLEC shall have the option of purchasing an entire stand-alone UNE digital loop if it wishes to continue to provide advanced services to that end user. If CLEC notifies Embarq that it chooses this option, CLEC and Embarq shall cooperate to transition DSL service from the HFPL to the stand-alone loop without any interruption of service pursuant to the provisions set forth below. If CLEC declines to purchase the entire stand alone UNE digital loop, Embarq may terminate the HFPL.
67.4. Embarq will use reasonable efforts to accommodate the continued use by CLEC as a stand-alone UNE digital loop of the Copper Loop facilities over which CLEC is provisioning advanced services at the time that the Embarq-provided retail voice service terminates; if:
67.4.1. adequate facilities are available to allow the provisioning of voice service over such other facilities, and
67.4.2. CLEC agrees to pay any additional ordering charges associated with the conversion from the provisioning of HFPL to a stand alone unbundled digital loop as specified in Table One (excluding conditioning charges).
67.5. Any additional maintenance of service conducted at CLEC’s request by Embarq on behalf of the CLEC solely for the benefit of the CLEC’s services will be paid for by CLEC at prices negotiated by Embarq and CLEC.
67.6. Deployment and Interference
67.6.1. In providing services utilizing the HFPL, Embarq shall allow CLEC to deploy underlying technology that does not significantly interfere with other advanced services and analog circuit-switched voice band transmissions.
67.6.2. For any technology, CLEC represents that its use of any Embarq network element, or of its own equipment or facilities in conjunction with any Embarq network element, will not materially interfere with or impair service over any facilities of Embarq, its affiliated companies or connecting and concurring carriers, cause damage to Embarq’s plant, impair the privacy of any communications carried over Embarq’s facilities or create hazards to employees or the public. Upon reasonable written notice and after a reasonable opportunity to cure, Embarq may discontinue service if CLEC violates this provision. The termination of service will be limited to CLEC’s use of the element(s) causing the violation. Embarq will not disconnect the elements causing the violation if, after receipt of written notice and opportunity to cure, CLEC demonstrates that their use of the network element is not the cause of the network harm.
PART I – NON-251 SERVICES
68. CALL-RELATED DATABASES
68.1. Embarq will offer access to call-related databases (non-251 services), including, but not limited to, Toll Free Calling database, Number Portability database, and Calling Name (CNAM) database. Embarq reserves the right to decline to offer access to certain AIN software that qualifies for proprietary treatment. The rates for access to these call-related databases are set forth on Table One.
68.1.1. The CNAM database is a transaction-oriented database accessible via the CCS network. CNAM provides the calling parties’ name to be delivered and displayed to the terminating caller with ‘Caller ID with Name’. Use of Embarq’s CNAM Database by CLEC and CLEC’s customers is limited to obtaining CNAM responses and using the information contained in those responses only on a call by call basis and only to support service related to a call in progress. CLEC will not capture, cache, or store any information contained in a CNAM response.
68.1.2. The Toll Free Number Database provides functionality necessary for toll free (e.g., 800 and 888) number services by providing routing information and additional vertical features (i.e., time of day routing by location, by carrier and routing to multiple geographic locations) during call setup in response to queries from CLEC’s switch. Use of Embarq’s Toll Free Database by CLEC and its customers is limited to obtaining information, on a call-by-call basis, for proper routing of calls in the provision of toll free exchange access service or local toll free service.
68.1.3. Local Number Portability Local Routing Query Service. TCAP messages originated by CLEC’s SSPs and received by Embarq’s database will be provided a response upon completion of a database lookup to determine the LRN. This information will be populated in industry standard format and returned to CLEC so that it can then terminate the call in progress to the telephone number now residing in the switch designated by the LRN.
(a) CLEC agrees to obtain, prior to the initiation of any LNP query, a NPAC/SMS User Agreement with Neustar. CLEC will maintain the NPAC/SMS User Agreement with Neustar, or its successor, as long as it continues to make LNP queries to the Embarq database. Failure to obtain and maintain the NPAC/SMS User Agreement is considered a breach of this Agreement and is cause for immediate termination of service. Embarq shall not be liable for any direct or consequential damages due to termination because of lack of a NPAC/SMS User Agreement.
(b) Embarq's LNP Database service offering does not include the cost of any charges or assessments by Number Portability Administrative Centers, whether under the NPAC/SMS User Agreement with Lockheed, or otherwise, or any charges assessed directly against CLEC as the result of the FCC LNP Orders or otherwise by any third-party. These costs include the costs assessed against telecommunications carriers to pay for NPAC functions as permitted by the FCC and applicable legal or regulatory bodies. Embarq shall have no liability to CLEC or the NPAC for any of these fees or charges applicable to CLEC, even though it may pay such charges for other Embarq companies.
69. TRANSIT TRAFFIC
69.1. Transit Service (non-251 service) means the delivery of Transit Traffic, i.e. Local Traffic or ISP- Bound Traffic originated by CLEC terminated to a third party LEC, ILEC, or CMRS provider or originated by a third party and terminated to CLEC using Embarq’s tandem switch over the local/intraLATA interconnection trunks.
69.2. To the extent network and contractual arrangements exist with all necessary parties throughout the term of this Agreement, and where indirectly interconnected parties have an interconnection to the same Embarq tandem, Embarq will provide Transit Services for CLEC’s connection of its end user to a local end user of: (1) CLECs, (2) an ILEC other than Embarq, and (3) other CMRS carriers.
69.3. Embarq may require separate trunking for the delivery of such Transit Traffic in order to accurately measure and bill it.
69.4. Terms and Conditions
69.4.1. Each Party acknowledges that a third-party LEC may block transit traffic. To the extent the originated Party’s traffic is blocked by a third party, Embarq shall have no obligation to resolve the dispute. CLEC acknowledges that Embarq does not have any responsibility to pay any third-party Telecommunications Carrier charges for termination of any identifiable Transit Traffic from the originating Party. Each Party acknowledges that it is the originating Party’s responsibility to enter into arrangements with each third party LEC, CLEC, or CMRS provider for the exchange of transit traffic to that third party.
69.4.2. Notwithstanding any other provision to the contrary, once the Transit Traffic volume between CLEC and a third party exceeds a DS1 equivalent of traffic, Embarq will no longer provide transit service and CLEC must establish a direct interconnection with the third party for the exchange of such traffic. Within sixty (60) days of when traffic exceeds this threshold, CLEC shall establish a direct interconnection with such third party. After sixty (60) days, if CLEC has not established a direct interconnection and if CLEC is exercising its best efforts to implement a direct connection with such third party, Embarq shall continue to transit the traffic. If Embarq disagrees that CLEC is using its best efforts to implement a direct connection, Embarq may seek relief pursuant to the Dispute Resolution provisions.
69.5. Payment Terms and Conditions
69.5.1. The originating Party shall pay to Embarq a transit service charge as set forth in Table One.
69.5.2. CLEC shall pay a transit rate as set forth in Table One of this Part when CLEC uses an Embarq access tandem to terminate a local or ISP-bound call to a third party LEC, CLEC or CMRS provider. CLEC may be required to compensate Embarq for transit charges for traffic originated by an ILEC, transited by Embarq and terminated to CLEC.
69.6. Billing Records and Exchange of Data
69.6.1. Parties will use their best efforts to convert all networks transporting transit traffic to deliver each call to the other Party’s network with SS7 Common Channel Interoffice Signaling (CCIS) and other appropriate TCAP messages in order to facilitate full interoperability and billing functions. The Parties agree to send all message indicators, including originating telephone number, local routing number and CIC.
69.6.2. Upon request by the terminating Party and to the extent possible, Embarq agrees to provide the terminating Party information on traffic originated by a third party CLECs or CMRS provider. To the extent Embarq incurs additional cost in providing this billing information, CLEC agrees to reimburse Embarq for its direct costs of providing this information.
69.6.3. To the extent that the industry adopts a standard record format for recording originating and/or terminating transit calls, both Parties agree to comply with the industry-adopted format to exchange records.
69.7. Notwithstanding any other provision to the contrary, once the Transit Traffic volume between CLEC and a third party exceeds the equivalent of three (3) DS1s of traffic, Embarq may, but shall not be obligated to require CLEC to establish a direct connection with to the parties to whom they are sending traffic. Embarq also reserves the right to require CLEC to establish a direct connection to the third party if, in Embarq's sole discretion, the tandem is at or approaching capacity limitations. These limitations may include but are not limited to a lack of trunk port capacity or processor capacity based on the then existing tandem and network configuration. Within sixty (60) days after Embarq notifies CLEC of the requirement to direct connect, CLEC shall establish a direct interconnection with such third party. After sixty (60) days, if CLEC has not established a direct interconnection, Embarq may Embarq may thereafter charge CLEC for such transit service at Intrastate Access rates, or discontinue providing transit service to CLEC, at the sole discretion of Embarq, provided however, that Embarq shall exercise such discretion in a non-discriminatory manner.
PART J – GENERAL BUSINESS REQUIREMENTS
70.1. Contact with End Users
70.1.1. Each Party at all times shall be the primary contact and account control for all interactions with its end users, except as specified by that Party. Subscribers include active end users as well as those for whom service orders are pending.
70.1.2. Each Party shall ensure that any of its personnel who may receive end user inquiries, or otherwise have opportunity for end user contact from the other Party’s end user regarding the other Party’s services: (i) provide appropriate referrals to subscribers who inquire about the other Party’s services or products; (ii) do not in any way disparage or discriminate against the other Party, or its products or services; and (iii) do not provide information about its products or services during that same inquiry or end user contact.
70.1.3. Embarq shall not use CLEC’s request for end user information, order submission, or any other aspect of CLEC’s processes or services to aid Embarq’s marketing or sales efforts.
70.2. Expedite and Escalation Procedures
70.2.1. Embarq and CLEC shall develop mutually acceptable escalation and expedite procedures which may be invoked at any point in the Service Ordering, Provisioning, Maintenance, and Subscriber Usage Data transfer processes to facilitate rapid and timely resolution of disputes. In addition, Embarq and CLEC will establish intercompany contacts lists for purposes of handling end user and other matters which require attention/resolution outside of normal business procedures within thirty (30) Days after CLEC’s request. Each party shall notify the other party of any changes to its escalation contact list as soon as practicable before such changes are effective.
70.2.2. No later than thirty (30) Days after CLEC’s request Embarq shall provide CLEC with contingency plans for those cases in which normal Service Ordering, Provisioning, Maintenance, Billing, and other procedures for Embarq’s unbundled Network Elements, features, functions, and resale services are inoperable.
70.3. Subscriber of Record. Embarq shall recognize CLEC as the Subscriber of Record for all Network Elements or services for resale ordered by CLEC and shall send all notices, invoices, and information which pertain to such ordered services directly to CLEC. CLEC will provide Embarq with addresses to which Embarq shall send all such notices, invoices, and information.
70.4. Service Offerings
70.4.1. Embarq shall provide CLEC with access to new services, features and functions concurrent with Embarq’s notice to CLEC of such changes, if such service, feature or function is installed and available in the network or as soon thereafter as it is installed and available in the network, so that CLEC may conduct market testing.
70.4.2. Essential Services. For purposes of service restoral, Embarq shall designate a CLEC access line as an Essential Service Line (ESL) at Parity with Embarq’s treatment of its own end users and applicable state law or regulation, if any.
70.4.3. Blocking Services. Upon request from CLEC, employing Embarq-approved LSR documentation, Embarq shall provide blocking of 700, 900, and 976 services, or other services of similar type as may now exist or be developed in the future, and shall provide Billed Number Screening (BNS), including required LIDB updates, or equivalent service for blocking completion of bill-to-third party and collect calls, on a line, PBX, or individual service basis. Blocking shall be provided to the extent (a) it is an available option for the Telecommunications Service resold by CLEC, or (b) it is technically feasible when requested by CLEC as a function of unbundled Network Elements.
70.4.4. Training Support. Embarq shall provide training, on a non-discriminatory basis, for all Embarq employees who may communicate, either by telephone or face-to-face, with CLEC end users. Such training shall include compliance with the branding requirements of this Agreement including without limitation provisions of forms, and unbranded “Not at Home’ notices.
71. ORDERING AND PROVISIONING
71.1. Ordering and Provisioning Parity. Embarq shall provide necessary ordering and provisioning business process support as well as those technical and systems interfaces as may be required to enable CLEC to provide the same level and quality of service for all resale services, functions, features, capabilities and unbundled Network Elements at Parity.
71.2. National Exchange Access Center (NEAC)
71.2.1. Embarq shall provide a NEAC or equivalent which shall serve as CLEC’s point of contact for all activities involved in the ordering and provisioning of Embarq's unbundled Network Elements, features, functions, and resale services.
71.2.2. The NEAC shall provide to CLEC a nationwide telephone number (available from 6:00
a.m. to 8:00 p.m. Eastern Standard Time, Monday through Friday, and 8:00 am through 5:00 P.M. Eastern Standard Time on Saturday) answered by competent, knowledgeable personnel trained to answer questions and resolve problems in connection with the ordering and provisioning of unbundled Network Elements (except those associated with local trunking interconnection), features, functions, capabilities, and resale services.
71.2.3. Embarq shall provide, as requested by CLEC, through the NEAC, provisioning and premises visit installation support in the form of coordinated scheduling, status, and dispatch capabilities during Embarq’s standard business hours and at other times as agreed upon by the parties to meet end user demand.
71.3. Street Index Guide (SIG). Within thirty (30) Days of CLEC’s written request, Embarq shall provide to CLEC the SIG data in the National Emergency Number Association Two (NENA2) format. A CDROM containing the SIG data will be shipped to the CLEC’s designated contact on a monthly basis until the request is cancelled.
71.4. CLASS and Custom Features. Where generally available in Embarq’s serving area, CLEC, at the tariff rate, may order the entire set of CLASS, CENTREX and Custom features and functions, or a subset of any one of such features.
71.5. Number Administration/Number Reservation
71.5.1. Embarq shall provide testing and loading of CLEC’s NXX on the same basis as Embarq provides itself or its affiliates. Further, Embarq shall provide CLEC with access to abbreviated dialing codes, and the ability to obtain telephone numbers,
including vanity numbers, while a subscriber is on the phone with CLEC. When CLEC uses numbers from an Embarq NXX, Embarq shall provide the same range of number choices to CLEC, including choice of exchange number, as Embarq provides its own subscribers. Reservation and aging of Embarq NXX’s shall remain Embarq’s responsibility.
71.5.2. In conjunction with an order for service, Embarq shall accept CLEC orders for vanity numbers and blocks of numbers for use with complex services including, but not limited to, DID, CENTREX, and Hunting arrangements, as requested by CLEC.
71.5.3. For simple services number reservations and aging of Embarq’s numbers, Embarq shall provide real-time confirmation of the number reservation when the Electronic Interface has been implemented. For number reservations associated with complex services, Embarq shall provide confirmation of the number reservation within twenty-four (24) hours of CLEC’s request. Consistent with the manner in which Embarq provides numbers to its own subscribers, no telephone number assignment is guaranteed until service has been installed.
71.6. Service Order Process Requirements
71.6.1. Service Migrations and New Subscriber Additions
(a) For resale services, other than for a CLEC order to convert “as is” a CLEC subscriber, Embarq shall not disconnect any subscriber service or existing features at any time during the migration of that subscriber to CLEC service without prior CLEC agreement.
(b) For services provided through UNEs, Embarq shall recognize CLEC as an agent, in accordance with OBF developed processes, for the subscriber in coordinating the disconnection of services provided by another CLEC or Embarq. In addition, Embarq and CLEC will work cooperatively to minimize service interruptions during the conversion.
(c) Unless otherwise directed by CLEC and when technically capable, when CLEC orders resale Telecommunications Services all trunk or telephone numbers currently associated with existing services shall be retained without loss of feature capability and without loss of associated ancillary services including, but not limited to, Directory Assistance and 911/E911 capability.
(d) For subscriber conversions requiring coordinated cut-over activities, on a per order basis, Embarq, to the extent resources are readily available, and CLEC will agree on a scheduled conversion time, which will be a designated time period within a designated date.
(e) Any request made by CLEC to coordinate conversions after normal working hours, or on Saturdays or Sundays or Embarq holidays shall be performed at CLEC’s expense.
(f) A general Letter of Agency (LOA) initiated by CLEC or Embarq will be required to process a PLC or PIC change order. Providing the LOA, or a copy of the LOA, signed by the end user will not be required to process a PLC or PIC change ordered by CLEC or Embarq. CLEC and Embarq agree that PLC and PIC change orders will be supported with appropriate documentation and verification as required by FCC and Commission rules. In the event of a subscriber complaint of an unauthorized PLC record change where the Party that ordered such change is unable to produce appropriate documentation and
verification as required by FCC and Commission rules (or, if there are no rules applicable to PLC record changes, then such rules as are applicable to changes in long distance carriers of record), such Party shall be liable to pay and shall pay all nonrecurring and/or other charges associated with reestablishing the subscriber’s local service with the original local carrier.
71.6.2. Intercept Treatment and Transfer Service Announcements. Embarq shall provide unbranded intercept treatment and transfer of service announcements to CLEC’s subscribers. Embarq shall provide such treatment and transfer of service announcement in accordance with local tariffs and as provided to similarly situated Embarq subscribers for all service disconnects, suspensions, or transfers.
71.6.3. Due Date
(a) Embarq shall supply CLEC with due date intervals to be used by CLEC personnel to determine service installation dates.
(b) Embarq shall use reasonable efforts to complete orders by the CLEC requested DDD within agreed upon intervals.
(c) Subscriber Premises Inspections and Installations
(i) CLEC shall perform or contract for all CLEC’s needs assessments, including equipment and installation requirements required beyond the Demarcation/NID, located at the subscriber premises.
(ii) Embarq shall provide CLEC with the ability to schedule subscriber premises installations at the same morning and evening commitment level of service offered Embarq’s own customers. The parties shall mutually agree on an interim process to provide this functionality during the implementation planning process.
(d) Firm Order Confirmation (FOC)
(i) Embarq shall provide to CLEC, a Firm Order Confirmation (FOC) for each CLEC order. The FOC shall contain the appropriate data elements as defined by the OBF standards.
(ii) For a revised FOC, Embarq shall provide standard detail as defined by the OBF standards.
(iii) Embarq shall provide to CLEC the date that service is scheduled to be installed.
71.6.4. Order Rejections
(a) Embarq shall reject and return to CLEC any order that Embarq cannot provision, due to technical reasons, missing information, or jeopardy conditions resulting from CLEC ordering service at less than the standard order interval. When an order is rejected, Embarq shall, in its reject notification, specifically describe all of the reasons for which the order was rejected. Embarq shall reject any orders on account of the customer Desired Due Date conflicts with published Embarq order provisioning interval requirements.
71.6.5. Service Order Changes
(a) In no event will Embarq change a CLEC initiated service order without a new service order directing said change. If an installation or other CLEC ordered work requires a change from the original CLEC service order in any manner, CLEC shall initiate a revised service order. If requested by CLEC, Embarq shall then provide CLEC an estimate of additional labor hours and/or materials.
(b) When a service order is completed, the cost of the work performed will be reported promptly to CLEC.
(c) If a CLEC subscriber requests a service change at the time of installation or other work being performed by Embarq on behalf of CLEC, Embarq, while at the subscriber premises, shall direct the CLEC subscriber to contact CLEC, and CLEC will initiate a new service order.
71.7. Network Testing. Embarq shall perform all its standard pre-service testing prior to the completion of the service order.
71.8. Service Suspensions/Restorations. Upon CLEC’s request through an Industry Standard, OBF, Suspend/Restore Order, or mutually agreed upon interim procedure, Embarq shall suspend or restore the functionality of any Network Element, feature, function, or resale service to which suspend/restore is applicable. Embarq shall provide restoration priority on a per network element basis in a manner that conforms with any applicable regulatory Rules and Regulations or government requirements.
71.9. Order Completion Notification. Upon completion of the requests submitted by CLEC, Embarq shall provide to CLEC a completion notification in an industry standard, OBF, or in a mutually agreed format. The completion notification shall include detail of the work performed, to the extent this is defined within OBF guidelines, and in an interim method until such standards are defined.
71.10. Specific Unbundling Requirements. CLEC may order and Embarq shall provision unbundled Network Elements. However, it is CLEC’s responsibility to combine the individual network elements should it desire to do so.
71.11. Systems Interfaces and Information Exchanges
71.11.1. General Requirements
(a) Embarq shall provide to CLEC Electronic Interface(s) for transferring and receiving information and executing transactions for all business functions directly or indirectly related to Service Ordering and Provisioning of Network Elements, features, functions and Telecommunications Services, to the extent available.
(b) Until the Electronic Interface is available, Embarq agrees that the NEAC or similar function will accept CLEC orders. Orders will be transmitted to the NEAC via an interface or method agreed upon by CLEC and Embarq.
(c) If the method of connectivity is File Transfer Protocol (FTP), the response(s) will be loaded to the server every hour and it is the responsibility of CLEC to retrieve their response(s) from the server.
(d) It is the responsibility of CLEC to provide Embarq with the LOA (Letter of Authorization) when another party is involved and is working on their behalf.
71.11.2. For any prospective CLEC subscriber, Embarq shall provide CLEC with access to that subscriber’s CPNI without requiring CLEC to produce a signed LOA, subject to
applicable rules, orders, and decisions, and based on CLEC’s blanket representation that subscriber has authorized CLEC to obtain such CPNI.
(a) The preordering Electronic Interface includes the provisioning of CPNI from Embarq to CLEC. The Parties agree to request end user CPNI only when the end user has specifically given permission to receive CPNI. The Parties agree that they will conform to FCC and/or state regulations regarding the provisioning of CPNI between the parties, and regarding the use of that information by the requesting party.
(b) The requesting Party will document end user permission obtained to receive CPNI, whether or not the end user has agreed to change local service providers. With respect to end users whose CPNI has been received by CLEC, Embarq may request documentation from CLEC to substantiate that CLEC has requested and received permission from all such end users. If CLEC is not able to provide adequate documentation reflecting such permission from at least ninety-five (95%) of such end users, Embarq reserves the right to immediately disconnect the preordering Electronic Interface.
(c) The Parties agree to execute carrier changes as specified by the FCC in
47 CFR 64.1120. Documentation reflecting the request for a carrier change and verification in the form set forth in 47 CFR 64.1120 may be requested by the Party whose CPNI has been accessed in connection with such requested carrier change to investigate possible slamming incidents, and for other reasons agreed to by the Parties. A Party’s failure to obtain and maintain adequate documentation of the request for a carrier change and verification of the same in the form set forth in 47 CFR 64.1120 before changing service from the other Party, or failure to produce documentation of such request and verification upon request of the other Party shall be considered a breach of the Agreement. A Party can cure the breach by submitting to the other Party a copy of such documentation within three (3) Business Days of notification of the breach.
(d) If CLEC is not able to provide the LOA for ninety-five percent (95%) of the end users requested by Embarq, or if Embarq determines that an LOA is inadequate, CLEC will be considered in breach of the agreement. CLEC can cure the breach by submitting to Embarq evidence of an LOA for each inadequate or omitted LOA within three (3) Business Days of notification of the breach.
(e) Should CLEC not be able to cure the breach in the timeframe noted above, Embarq will discontinue processing new service orders until, in Embarq’s determination, CLEC has corrected the problem that caused the breach.
(f) Embarq will resume processing new service orders upon Embarq’s timely review and acceptance of evidence provided by CLEC to correct the problem that caused the breach.
(g) If CLEC and Embarq do not agree that CLEC has appropriate documentation or verification of a requested carrier change by a specific end user, or that Embarq has erred in not accepting proof of such carrier change request, the Parties may immediately request dispute resolution in accordance with Part B. Embarq will not disconnect the preordering Electronic Interface during the Alternate Dispute Resolution process.
71.12. CLEC may use Embarq’s ordering process (IRES) to:
71.12.1. to assign telephone number(s) (if the subscriber does not already have a telephone number or requests a change of telephone number) at Parity.
(a) to schedule dispatch and installation appointments at Parity.
(b) to access Embarq subscriber information systems which will allow CLEC to determine if a service call is needed to install the line or service at Parity.
(c) to access Embarq information systems which will allow CLEC to provide service availability dates at Parity.
(d) transmit status information on service orders, including acknowledgement, firm order confirmation, and completion at Parity.
71.13.1. General Requirements. CLEC and Embarq shall agree upon the appropriate ordering and provisioning codes to be used for UNEs. These codes shall apply to all aspects of the unbundling of that element and shall be known as data elements as defined by the Telecommunications Industry Forum Electronic Data Interchange Service Order Subcommittee (TCIF-EDI-SOSC).
72. PROVISION OF USAGE DATA
72.1. This Section sets forth the terms and conditions for Embarq’s provision of Recorded Usage Data (as defined in this Part) to CLEC and for information exchange regarding long distance and access billing. The parties agree to record call information for interconnection in accordance with this Section. To the extent technically feasible, each party shall record all call detail information associated with completed calls originated by or terminated to the other Party’s local exchange subscriber, and long distance calls transited through one Party’s network to the terminating provider. Embarq shall record for CLEC the messages that Embarq records for and bills to its end users and records for billing of interexchange carriers. These records shall be provided at a party’s request and shall be formatted pursuant to Telcordia’s EMI standards and the terms and conditions of this Agreement. These records shall be transmitted to the other party on non-holiday Business Days in EMI format via CDN, or provided on a cartridge. Embarq and CLEC agree that they shall retain, at each party’s sole expense, copies of all EMI records transmitted to the other party for at least forty-five (45) calendar days after transmission to the other party.
72.2. General Procedures
72.2.1. Embarq shall comply with various industry and OBF standards referred to throughout this Agreement.
72.2.2. Embarq shall comply with OBF standards when recording and transmitting Usage Data.
72.2.3. Embarq shall record all usage originating from CLEC end users using resold services ordered by CLEC, where Embarq records those same services for Embarq end users. Recorded Usage Data includes, but is not limited to, the following categories of information:
(a) Use of CLASS/LASS/Custom Features that Embarq records and bills for its end users on a per usage basis.
(b) Calls to Information Providers (IP) reached via Embarq facilities will be provided in accordance with Section 72.2.7
(c) Calls to Directory Assistance where Embarq provides such service to a CLEC end user.
(d) Calls completed via Embarq-provided Operator Services where Embarq provides such service to CLEC’s local service end user and where Embarq records such usage for its end users using Industry Standard Telcordia EMI billing records.
(e) Access records related to long distance calling.
(f) For Embarq-provided Centrex Service, station level detail.
72.2.4. Retention of Records. Embarq shall maintain a machine readable back-up copy of the message detail provided to CLEC for a minimum of forty-five (45) calendar days. During the forty-five (45) day period, Embarq shall provide any data back-up to CLEC upon the request of CLEC. If the forty-five (45) day period has expired, Embarq may provide the data back-up at CLEC’s expense.
72.2.5. Embarq shall provide to CLEC Recorded Usage Data for CLEC end users. Embarq shall not submit other CLEC local usage data as part of the CLEC Recorded Usage Data.
72.2.6. Embarq shall not bill directly to CLEC subscribers any recurring or non-recurring charges for CLEC’s services to the end user except where explicitly permitted to do so within a written agreement between Embarq and CLEC.
72.2.7. Embarq will record 976/N11 calls and transmit them to the IP for billing. Embarq will not bill these calls to either the CLEC or the CLEC’s end user.
72.2.8. Embarq shall provide Recorded Usage Data to CLEC billing locations as agreed to by the Parties.
72.2.9. Embarq shall provide a single point of contact to respond to CLEC call usage, data error, and record transmission inquiries.
72.2.10. Embarq shall provide CLEC with a single point of contact and remote identifiers (IDs) for each sending location.
72.2.11. CLEC shall provide a single point of contact responsible for receiving usage transmitted by Embarq and receiving usage tapes from a courier service in the event of a facility outage.
72.2.12. Embarq shall bill and CLEC shall pay the charges for Recorded Usage Data. Billing and payment shall be in accordance with the applicable terms and conditions set forth herein.
72.3.1. Access services, including revenues associated therewith, provided in connection with the resale of services hereunder shall be the responsibility of Embarq and Embarq shall directly bill and receive payment on its own behalf from an IXC for access related to interexchange calls generated by resold or rebranded customers.
72.3.2. Embarq will be responsible for returning EMI records to IXCs with the proper EMI Return Code along with the Operating Company Number (OCN) of the associated ANI, (i.e., Billing Number).
72.3.3. Embarq will deliver a monthly statement for Wholesale Services in the medium (e.g.: NDM, paper, or CD-ROM) requested by CLEC as follows:
(a) Invoices will be provided in a standard Carrier Access Billing format or other such format as Embarq may determine;
(b) Where local usage charges apply and message detail is created to support available services, the originating local usage at the call detail level in standard EMI industry format will be exchanged daily or at other mutually agreed upon intervals, and CLEC will pay Embarq for providing such call detail;
(c) The Parties will work cooperatively to exchange information to facilitate the billing of in and out collect and inter/intra-region alternately billed messages;
(d) Embarq agrees to provide information on the end-user’s selection of special features where Embarq maintains such information (e.g.: billing method, special language) when CLEC places the order for service;
(e) Monthly recurring charges for Telecommunications Services sold pursuant to this Agreement shall be billed monthly in advance.
(f) Embarq shall bill for message provisioning and, if applicable data tape charges, related to the provision of usage records. Embarq shall also bill CLEC for additional copies of the monthly invoice.
72.3.4. For billing purposes, and except as otherwise specifically agreed to in writing, the Telecommunications Services provided hereunder are furnished for a minimum term of one month. Each month is presumed to have thirty (30) days.
72.4. Central Clearinghouse and Settlement
72.4.1. Embarq and CLEC shall agree upon Clearinghouse and Incollect/Outcollect procedures.
72.4.2. Embarq shall settle with CLEC for both intra-region and inter-region billing exchanges of calling card, bill-to-third party, and collect calls under separately negotiated settlement arrangements.
72.5. Lost Data
72.5.1. Loss of Recorded Usage Data. CLEC Recorded Usage Data determined to have been lost, damaged or destroyed as a result of an error or omission by Embarq in its performance of the recording function shall be recovered by Embarq at no charge to CLEC. In the event the data cannot be recovered by Embarq, Embarq shall estimate the messages and associated revenue, with assistance from CLEC, based upon the method described below. This method shall be applied on a consistent basis, subject to modifications agreed to by Embarq and CLEC. This estimate shall be used to adjust amounts CLEC owes Embarq for services Embarq provides in conjunction with the provision of Recorded Usage Data.
72.5.2. Partial Loss. Embarq shall review its daily controls to determine if data has been lost. When there has been a partial loss, actual message and minute volumes shall be reported, if possible through recovery as discussed in Section 72.5 above. Where actual data are not available, a full day shall be estimated for the recording entity, as outlined in the following paragraphs. The amount of the partial loss is then determined by subtracting the data actually recorded for such day from the estimated total for such day.
72.5.3. Complete Loss. When Embarq is unable to recover data as discussed in Section 72.5 above estimated message and minute volumes for each loss consisting of an entire AMA tape or entire data volume due to its loss prior to or during processing, lost after receipt, degaussed before processing, receipt of a blank or unreadable tape, or lost for other causes, shall be reported.
72.5.4. Estimated Volumes. From message and minute volume reports for the entity experiencing the loss, Embarq shall secure message/minute counts for the four (4) corresponding days of the weeks preceding that in which the loss occurred and compute an average of these volumes. Embarq shall apply the appropriate average revenue per message (“arpm”) agreed to by CLEC and Embarq to the estimated message volume for messages for which usage charges apply to the subscriber to arrive at the estimated lost revenue.
72.5.5. If the day of loss is not a holiday but one (1) (or more) of the preceding corresponding days is a holiday, use additional preceding weeks in order to procure volumes for two
(2) non-holidays in the previous two (2) weeks that correspond to the day of the week that is the day of the loss.
72.5.6. If the loss occurs on a weekday that is a holiday (except Christmas and Mother’s day), Embarq shall use volumes from the two (2) preceding Sundays.
72.5.7. If the loss occurs on Mother’s day or Christmas day, Embarq shall use volumes from that day in the preceding year multiplied by a growth factor derived from an average of CLEC’s most recent three (3) month message volume growth. If a previous year’s message volumes are not available, a settlement shall be negotiated.
72.6. Testing, Changes and Controls
72.6.1. The Recorded Usage Data, EMI format, content, and transmission process shall be tested as agreed upon by CLEC and Embarq.
72.6.2. Control procedures for all usage transferred between Embarq and CLEC shall be available for periodic review. This review may be included as part of an Audit of Embarq by CLEC or as part of the normal production interface management function. Breakdowns which impact the flow of usage between Embarq and CLEC must be identified and jointly resolved as they occur. The resolution may include changes to control procedures, so similar problems would be avoided in the future. Any changes to control procedures would need to be mutually agreed upon by CLEC and Embarq.
72.6.3. Embarq Software Changes
(a) When Embarq plans to introduce any software changes which impact the format or content structure of the usage data feed to CLEC, designated Embarq personnel shall notify CLEC no less than ninety (90) calendar days before such changes are implemented.
(b) Embarq shall communicate the projected changes to CLEC’s single point of contact so that potential impacts on CLEC processing can be determined.
(c) CLEC personnel shall review the impact of the change on the entire control structure. CLEC shall negotiate any perceived problems with Embarq and shall arrange to have the data tested utilizing the modified software if required.
(d) If it is necessary for Embarq to request changes in the schedule, content or format of usage data transmitted to CLEC, Embarq shall notify CLEC.
72.6.4. CLEC Requested Changes:
(a) CLEC may submit a purchase order to negotiate and pay for changes in the content and format of the usage data transmitted by Embarq.
(b) When the negotiated changes are to be implemented, CLEC and/or Embarq shall arrange for testing of the modified data.
72.7. Information Exchange and Interfaces
72.7.1. Product/Service Specific. Embarq shall provide a Telcordia standard 42-50-01 miscellaneous charge record to support the Special Features Star Services if these features are part of Embarq’s offering and are provided for Embarq’s subscribers on a per usage basis.
72.8. Rejected Recorded Usage Data
220.127.116.11. Upon agreement between CLEC and Embarq, messages that cannot be rated and/or billed by CLEC may be returned to Embarq via CDN or other medium as agreed by the Parties. Returned messages shall be sent directly to Embarq in their original EMI format utilizing standard EMI return codes.
18.104.22.168. Embarq may correct and resubmit to CLEC any messages returned to Embarq. Embarq will not be liable for any records determined by Embarq to be billable to a CLEC end user. CLEC will not return a message that has been corrected and resubmitted by Embarq. Embarq will only assume liability for errors and unguideables caused by Embarq.
73. GENERAL NETWORK REQUIREMENTS
73.1. Embarq shall provide repair, maintenance and testing for all resold Telecommunications Services and such UNEs that Embarq is able to test, in accordance with the terms and conditions of this Agreement.
73.2. During the term of this Agreement, Embarq shall provide necessary maintenance business process support as well as those technical and systems interfaces at Parity. Embarq shall provide CLEC with maintenance support at Parity.
73.3. Embarq shall provide on a regional basis, a point of contact for CLEC to report vital telephone maintenance issues and trouble reports twenty four (24) hours and seven (7) days a week.
73.4. Embarq shall provide CLEC maintenance dispatch personnel on the same schedule that it provides its own subscribers.
73.5. Embarq shall cooperate with CLEC to meet maintenance standards for all Telecommunications Services and unbundled network elements ordered under this Agreement. Such maintenance standards shall include, without limitation, standards for testing, network management, call gapping, and notification of upgrades as they become available.
73.6. All Embarq employees or contractors who perform repair service for CLEC end users shall follow Embarq standard procedures in all their communications with CLEC end users. These procedures and protocols shall ensure that:
73.6.1. Embarq employees or contractors shall perform repair service that is equal in quality to that provided to Embarq end users; and
73.6.2. Trouble calls from CLEC shall receive response time priority that is equal to that of Embarq end users and shall be handled on a “first come first served” basis regardless of whether the end user is a CLEC end user or an Embarq end user.
73.7. Embarq shall provide CLEC with scheduled maintenance for resold lines, including, without limitation, required and recommended maintenance intervals and procedures, for all Telecommunications Services and network elements provided to CLEC under this Agreement equal in quality to that currently provided by Embarq in the maintenance of its own network. CLEC shall perform its own testing for UNEs.
73.8. Embarq shall give maximum advanced notice to CLEC of all non-scheduled maintenance or other planned network activities to be performed by Embarq on any network element, including any hardware, equipment, software, or system, providing service functionality of which CLEC has advised Embarq may potentially impact CLEC end users.
73.9. Notice of Network Event. Each party has the duty to alert the other of any network events that can result or have resulted in service interruption, blocked calls, or negative changes in network performance.
73.10. On all misdirected calls from CLEC end users requesting repair, Embarq shall provide such CLEC end user with the correct CLEC repair telephone number as such number is provided to Embarq by CLEC. Once the Electronic Interface is established between Embarq and CLEC, Embarq agrees that CLEC may report troubles directly to a single Embarq repair/maintenance center for both residential and small business end users, unless otherwise agreed to by CLEC.
73.11. Upon establishment of an Electronic Interface, Embarq shall notify CLEC via such electronic interface upon completion of trouble report. The report shall not be considered closed until such notification is made. CLEC will contact its end user to determine if repairs were completed and confirm the trouble no longer exists.
73.12. Embarq shall perform all testing for resold Telecommunications Services.
73.13. Embarq shall provide test results to CLEC, if appropriate, for trouble clearance. In all instances, Embarq shall provide CLEC with the disposition of the trouble.
73.14. If Embarq initiates trouble handling procedures, it will bear all costs associated with that activity. If CLEC requests the trouble dispatch, and either there is no trouble found, or the trouble is determined to be beyond the end user demarcation point, then CLEC will bear the cost.
74. MISCELLANEOUS SERVICES AND FUNCTIONS
74.1.1. The services described in this Section 74 only apply (i) when CLEC is ordering UNEs or resale from Embarq, (ii) Embarq is providing the service to itself, and (iii) in locations where Embarq is providing such service to Embarq’s end-user subscribers. To the extent that Embarq does not provide the services described in this Section 74 to itself, or CLEC is not ordering UNEs or resale from Embarq, or the service is not available to Embarq’s end-user subscribers in such locations, CLEC must secure any desired services under a separate commercial agreement with Embarq or another provider.
74.1.2. Basic 911 and E911 General Requirements
(a) Basic 911 and E911 provides a caller access to the appropriate emergency service bureau by dialing a 3-digit universal telephone number (911).
(b) Basic 911 and E911 functions provided to CLEC for unbundled local switching and resale shall be at Parity with the support and services that Embarq provides to its subscribers for such similar functionality.
(i) In a resale situation, where it may be appropriate for Embarq to update the ALI database, Embarq shall update such database with CLEC data in an interval at Parity with that experienced by Embarq end users.
(ii) Embarq shall transmit to CLEC daily all changes, alterations, modifications, and updates to the emergency public agency telephone numbers linked to all NPA NXXs. This transmission shall be electronic and be a separate feed from the subscriber listing feed.
(c) In government jurisdictions where Embarq has obligations under existing agreements as the primary provider of the 911 System to the county (Host Embarq), CLEC shall participate in the provision of the 911 System as follows:
(i) Each party shall be responsible for those portions of the 911 System for which it has control, including any necessary maintenance to each party’s portion of the 911 System.
(ii) Host Embarq shall be responsible for maintaining the E-911 database. Embarq shall be responsible for maintaining the E-911 routing database.
(d) If a third party is the primary service provider to a government agency, CLEC shall negotiate separately with such third party with regard to the provision of 911 service to the agency. All relations between such third party and CLEC are totally separate from this Agreement and Embarq makes no representations on behalf of the third party.
74.1.3. The following are Basic 911 and E911 Database Requirements
(a) The ALI database shall be managed by Embarq, but is the property of Embarq and CLEC for those records provided by CLEC.
(b) To the extent allowed by the governmental agency, and where available, copies of the SIG shall be provided within three business days from the time requested and provided on diskette, or in a format suitable for use with desktop computers.
(c) CLEC shall be solely responsible for providing CLEC database records to Embarq for inclusion in Embarq’s ALI database on a timely basis.
(d) Embarq and CLEC shall arrange for the automated input and periodic updating of the E911 database information related to CLEC end users. Embarq shall work cooperatively with CLEC to ensure the accuracy of the data transfer by verifying it against the SIG. Embarq shall accept electronically transmitted files that conform to NENA Version #2 format.
(e) CLEC shall assign an E911 database coordinator charged with the responsibility of forwarding CLEC end user ALI record information to Embarq or via a third- party entity, charged with the responsibility of ALI record transfer. CLEC assumes all responsibility for the accuracy of the data that CLEC provides to Embarq.
(f) CLEC shall provide information on new subscribers to Embarq within one (1) business day of the order completion. Embarq shall update the database within two (2) business days of receiving the data from CLEC. If Embarq detects an
error in the CLEC provided data, the data shall be returned to CLEC within two
(2) business days from when it was provided to Embarq. CLEC shall respond to requests from Embarq to make corrections to database record errors by uploading corrected records within two (2) business days. Manual entry shall be allowed only in the event that the system is not functioning properly.
(g) Embarq agrees to treat all data on CLEC subscribers provided under this Agreement as confidential and to use data on CLEC subscribers only for the purpose of providing E911 services.
74.2. Directory Listings Service Requests
74.2.1. These requirements pertain to Embarq’s Listings Service Request process that enables CLEC to (a) submit CLEC subscriber information for inclusion in Directory Listings databases; (b) submit CLEC subscriber information for inclusion in published directories; and (c) provide CLEC subscriber delivery address information to enable Embarq to fulfill directory distribution obligations.
74.2.2. When implemented by the Parties, Embarq shall accept orders on a real-time basis via electronic interface in accordance with OBF Directory Service Request standards within three (3) months of the effective date of this Agreement. In the interim, Embarq shall create a standard format and order process by which CLEC can place an order with a single point of contact within Embarq.
74.2.3. Embarq will provide to CLEC the following Directory Listing Migration Options, valid under all access methods, including but not limited to, Resale, UNEs and Facilities- Based:
(a) Migrate with no Changes. Retain all white page listings for the subscriber in both DA and DL. Transfer ownership and billing for white page listings to CLEC.
(b) Migrate with Additions. Retain all white page listings for the subscriber in DL. Incorporate the specified additional listings order. Transfer ownership and billing for the white page listings to CLEC.
(c) Migrate with Deletions. Retain all white page listings for the subscriber in DL. Delete the specified listings from the listing order. Transfer ownership and billing for the white page listings to CLEC.
(d) To ensure accurate order processing, Embarq or its directory publisher shall provide to CLEC the following information, with updates promptly upon changes:
(e) A matrix of NXX to central office;
(f) Geographical maps if available of Embarq service area;
(g) A description of calling areas covered by each directory, including but not limited to maps of calling areas and matrices depicting calling privileges within and between calling areas;
(h) Listing format rules;
(i) Standard abbreviations acceptable for use in listings and addresses;
(j) Titles and designations; and
(k) A list of all available directories and their Business Office close dates
74.2.4. Based on changes submitted by CLEC, Embarq shall update and maintain directory listings data for CLEC subscribers who:
(a) Disconnect Service;
(b) Change CLEC;
(c) Install Service;
(d) Change any service which affects DA information;
(e) Specify Non-Solicitation; and
(f) Are Non-Published, Non-Listed, or Listed.
74.2.5. Embarq shall not charge for storage of CLEC subscriber information in the DL systems.
74.2.6. CLEC shall not charge for storage of Embarq subscriber information in the DL systems.
74.3. Directory Listings General Requirements. CLEC acknowledges that many directory functions including but not limited to yellow page listings, enhanced white page listings, information pages, directory proofing, and directory distribution are not performed by Embarq but rather are performed by and are under the control of the directory publisher. CLEC acknowledges that for a CLEC subscriber’s name to appear in a directory, CLEC must submit a Directory Service Request (DSR). Embarq shall use reasonable efforts to assist CLEC in obtaining an agreement with the directory publisher that treats CLEC at Parity with the publisher’s treatment of Embarq.
74.3.1. This Section 74.3 pertains to listings requirements published in the traditional white pages.
74.3.2. Embarq shall include in its master subscriber system database all white pages listing information for CLEC subscribers in Embarq territories where CLEC is providing local telephone exchange services and has submitted a DSR.
74.3.3. Embarq agrees to include one basic White pages listing for each CLEC customer located within the geographic scope of its White Page directories, at no additional charge to CLEC. A basic White Pages listing is defined as a customer name, address and either the CLEC assigned number for a customer or the number for which number portability is provided, but not both numbers. Basic White Pages listings of CLEC customers will be interfiled with listings of Embarq and other LEC customers.
74.3.4. CLEC agrees to provide CLEC customer listing information, including without limitation directory distribution information, to Embarq, at no charge. Embarq will provide CLEC with the appropriate format for provision of CLEC customer listing information to Embarq. The parties agree to adopt a mutually acceptable electronic format for the provision of such information as soon as practicable. In the event OBF adopts an industry-standard format for the provision of such information, the parties agree to adopt such format.
74.3.5. Embarq agrees to provide White Pages database maintenance services to CLEC. CLEC will be charged a Service Order entry fee upon submission of Service Orders into Embarq’s Service Order Entry (SOE) System, which will include compensation for such database maintenance services. Service Order entry fees apply when Service
Orders containing directory records are entered into Embarq’s SOE System initially, and when Service Orders are entered in order to process a requested change to directory records.
74.3.6. CLEC customer listing information will be used solely for the provision of directory services, including the sale of directory advertising to CLEC customers.
74.3.7. In addition to a basic White Pages listing, Embarq will provide, tariffed White Pages listings (e.g.: additional, alternate, foreign and non-published listings) for CLEC to offer for resale to CLEC’s customers.
74.3.8. Embarq, or its directory publisher, agree to provide White Pages distribution services to CLEC customers within Embarq’s service territory at no additional charge to CLEC at times of regularly scheduled distribution to all customers. Embarq represents that the quality, timeliness, and manner of such distribution services will be at Parity with those provided to Embarq and to other CLEC customers.
74.3.9. Embarq agrees to include critical contact information pertaining to CLEC in the “Information Pages” of those of its White Pages directories containing information pages, if CLEC meets criteria established by its directory publisher. Critical contact information includes CLEC’s business office number, repair number, billing information number, and any other information required to comply with applicable regulations, but not advertising or purely promotional material. CLEC will not be charged for inclusion of its critical contact information. The format, content and appearance of CLEC’s critical contact information will conform to applicable Embarq directory publisher’s guidelines and will be consistent with the format, content and appearance of critical contact information pertaining to all CLECs in a directory.
74.3.10. Embarq will accord CLEC customer listing information the same level of confidentiality that Embarq accords its own proprietary customer listing information. Embarq shall ensure that access to CLEC customer proprietary listing information will be limited solely to those of Embarq and Embarq’s directory publisher’s employees, agents and contractors that are directly involved in the preparation of listings, the production and distribution of directories, and the sale of directory advertising. Embarq will advise its own employees, agents and contractors and its directory publisher of the existence of this confidentiality obligation and will take appropriate measures to ensure their compliance with this obligation. Notwithstanding any provision herein to the contrary, the furnishing of White Pages proofs to a CLEC that contains customer listings of both Embarq and CLEC will not be deemed a violation of this confidentiality provision.
74.3.11. Embarq will provide CLEC’s customer listing information to any third party to the extent required by Applicable Rules.
74.4. Other Directory Services. Embarq will exercise reasonable efforts to cause its directory publisher to enter into a separate agreement with CLEC which will address other directory services desired by CLEC as described in this Section 74.4. Both parties acknowledge that Embarq’s directory publisher is not a party to this Agreement and that the provisions contained in this Section 74.4 are not binding upon Embarq’s directory publisher.
74.4.1. Embarq’s directory publisher will negotiate with CLEC concerning the provision of a basic Yellow Pages listing to CLEC customers located within the geographic scope of publisher’s Yellow Pages directories and distribution of Yellow Pages directories to CLEC customers.
74.4.2. Directory advertising will be offered to CLEC customers on a nondiscriminatory basis and subject to the same terms and conditions that such advertising is offered to Embarq and other CLEC customers. Directory advertising will be billed to CLEC customers by directory publisher.
74.4.3. Directory publisher will use commercially reasonable efforts to ensure that directory advertising purchased by customers who switch their service to CLEC is maintained without interruption.
74.4.4. Information pages, in addition to any information page or portion of an information page containing critical contact information as described above in Section 74.3.9 may be purchased from Embarq’s directory publisher, subject to applicable directory publisher guidelines, criteria, and regulatory requirements.
74.4.5. Directory publisher maintains full authority as publisher over its publishing policies, standards and practices, including decisions regarding directory coverage area, directory issue period, compilation, headings, covers, design, content or format of directories, and directory advertising sales.
74.5. Directory Assistance Data. This Section refers to the residential, business, and government subscriber records used by Embarq to create and maintain databases for the provision of live or automated operator assisted Directory Assistance. Directory Assistance Data is information that enables telephone exchange CLECs to swiftly and accurately respond to requests for directory information, including, but not limited to name, address and phone numbers. Under the provisions of the Act and the FCC's Interconnection order, Embarq shall provide unbundled and non- discriminatory access to the residential, business and government subscriber records used by Embarq to create and maintain databases for the provision of live or automated operator assisted Directory Assistance. This access shall be provided under separate contract.
74.6. Systems Interfaces and Exchanges
74.6.1. Directory Assistance Data Information Exchanges and Interfaces
(a) Subscriber List Information
(b) Embarq shall provide to CLEC, at CLEC’s request, all published Subscriber List Information (including such information that resides in Embarq’s master subscriber system/accounts master file for the purpose of publishing directories in any format as specified by the Act) via an electronic data transfer medium and in a mutually agreed to format, on the same terms and conditions and at the same rates that the Embarq provides Subscriber List Information to itself or to other third parties. All changes to the Subscriber List Information shall be provided to CLEC pursuant to a mutually agreed format and schedule. Both the initial List and all subsequent Lists shall indicate for each subscriber whether the subscriber is classified as residence or business class of service.
(c) CLEC shall provide directory listings to Embarq pursuant to the directory listing and delivery requirements in the approved OBF format, at a mutually agreed upon timeframe. Other formats and requirements shall not be used unless mutually agreed to by the parties.
74.7. Listing Types
LISTED The listing information is available for all directory requirements.
NON-LISTED The listing information is available to all directory requirements, but the information does not appear in the published street directory.
NON-PUBLISHED A directory service may confirm, by name and address, the presence of a listing, but the telephone number is not available. The listing information is not available in either the published directory or directory assistance.
PART K – REPORTING STANDARDS
75.1. Embarq shall satisfy all service standards, intervals, measurements, specifications, performance requirements, technical requirements, and performance standards and will pay any penalties for violation of the performance standards that are required by law or regulation. In addition, Embarq's performance under this agreement shall be provided to CLEC at parity with the performance Embarq provides itself for like service(s).