Exhibit 10.1.39
AGREEMENT
FOR LOCAL WIRELINE NETWORK INTERCONNECTION
AND
SERVICE RESALE
BETWEEN
AMERICAN TELEPHONE TECHNOLOGY, INC.
AND
U S WEST COMMUNICATIONS, INC.
FOR THE XXXXX XX XXXXXX
XXX-000000-0000
TABLE OF CONTENTS
SECTION PAGE
PREAMBLE .................................................... 1
RECITALS AND PRINCIPLES ..................................... 1
SCOPE OF AGREEMENT .......................................... 2
PART I: GENERAL TERMS AND CONDITIONS ........................ 3
1. Term ...................................................... 3
2. Payment ................................................... 4
3. Taxes ..................................................... 5
4. Audits and Inspections .................................. 5
5. Indemnification ......................................... 6
6. Responsibility for Environmental Contamination .......... 7
7. Limitation of Liability ................................. 8
8. Remedies For Failure to Meet Service Quality Standards .. 9
9. Warranties .............................................. 9
10. Non-exclusive Remedies .................................. 12
11. Dispute Resolution ...................................... 13
12. Nondisclosure/Confidentiality and Proprietary Information 14
13. Customer Credit History ................................. 16
14. Branding ................................................ 16
15. Patents,-Trademarks ..................................... 17
16. Publicity and Advertising ............................... 17
17. Force Majeure ........................................... 17
18. Waiver .................................................. 18
19. Governing Law/Compliance with Laws ...................... 18
20. No Third Party Beneficiaries ............................ 20
21. Responsibility of Each Party ............................ 20
22. Assignment/Subcontracting ............................... 20
23. Entire Agreement ........................................ 21
24. Severability ............................................ 21
25. Amendments .............................................. 21
26. Heading of No Force or Effects .......................... 21.
27. Notices ................................................. 21
28. Joint Work Product ...................................... 22
29. Executed in Counterparts ................................ 23
30. Referenced Documents .................................... 23
31. Survival ................................................ 23
32. Successors and Assigns .................................. 23
PART II: LOCAL SERVICES RESALE
33. Introduction ............................................ 23
34. Local Services Resale ................................... 24
PART Ill: UNBUNDLED NETWORK ELEMENTS
35. Introduction ............................................ 26
36. Unbundled Network Elements .............................. 26
PART IV: ANCILLARY FUNCTIONS
37. Introduction ............................................ 34
38. ILEC Provision of Ancillary Functions ................... 35
39. Standards for Ancillary Functions ....................... 36
PART V: PRICING
40. General Principles ...................................... 37
41. Price Schedules ......................................... 38
SCHEDULES
Schedule 1 Total Services Resale Pricing
Schedule 2 Unbundled Network Elements Pricing
ATTACHMENTS
Attachment 1 [intentionally deleted]
Attachment 2 Services Description: Total Services Resale
Attachment 3 Services Description: Unbundled Network Elements
Attachment 4 Services Description: Ancillary Functions
Attachment 5 Provisioning and Ordering
Attachment 6 Maintenance
Attachment 7 Connectivity Billing and Recording
Attachment 8 Provision of Customer Usage Data
Attachment 9 Local Number Portability
Attachment 10 Network Security
Attachment 11 Credit for Failure to Meet Service Quality Standards
Attachment 12 Definitions and Acronyms
AGREEMENT
FOR LOCAL WIRELINE NETWORK INTERCONNECTION
AND
SERVICE RESALE
Pursuant to this Agreement for Local Wireline Network Interconnection
and Service Resale ("Agreement"), by and between American Telephone Technology,
Inc., a subsidiary of Advanced Telecommunications, Inc. (a Competitive Local
Exchange Carrier ("CLEC" or "Reseller", as applicable), on behalf of itself and
its Affiliates, and U S WEST Communications, Inc. (the lncumbent Local Exchange
Carrier or ("ILEC"), on behalf of itself and its Affiliates, (collectively, "the
Parties") will extend certain arrangements to one another within each LATA in
which they both operate within the state of Oregon.
RECITALS AND PRINCIPLES
WHEREAS, interconnection between competing Local Exchange Carriers
("LECs") is necessary for the termination of each company's originating traffic
on the other carrier's network; and
WHEREAS, The Telecommunications Act of 1996 (the "Act") was signed into
law on February 8,1996; and
WHEREAS, the Act places certain duties and obligations upon, and grants
certain rights to, Telecommunications Carriers; and
WHEREAS, ILEC is an Incumbent Local Exchange Carrier or has a majority
ownership interest in local exchange companies ("LECs") which are Incumbent
Local Exchange Carriers; and
WHEREAS, ILEC for itself and its Affiliates is willing to sell
unbundled Network Elements and Ancillary Functions and additional features, as
well as services for resale, on the terms and subject to the conditions of this
Agreement; and
WHEREAS, CLEC is a Telecommunications Carrier and has requested that
ILEC negotiate an Agreement with CLEC for the provision of interconnection, and
unbundled Network Elements (including Ancillary Functions and additional
features) pursuant to the Act and in conformance with ILEC's duties under the
Act; and
WHEREAS, the Parties have arrived at this Agreement;
NOW, THEREFORE, in consideration of the mutual provisions contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, CLEC and ILEC hereby covenant and agree as
follows:
SCOPE OF AGREEMENT
A. This Agreement sets forth the terms, conditions and prices under which
ILEC agrees to provide (1) services for resale (hereinafter referred to
as "Local Services") and (2) certain unbundled Network Elements,
Ancillary Functions and additional features to CLEC (hereinafter
collectively referred to as `Network Elements") or combinations of such
Network Elements ("Combinations") for CLEC's own use or for resale to
others, and for purposes of offering voice, video, or data services of
any kind, including, but not limited to, local exchange services,
intrastate toll services, and intrastate and interstate exchange access
services.
This Agreement also sets forth the terms and conditions for the
interconnection of CLEC's network to ILEC's network and the reciprocal
compensation for the transport and termination of telecommunications.
ILEC may fulfill the requirements imposed upon it by this Agreement by
itself or may cause its Affiliated ILECs to take such actions to
fulfill the responsibilities. Unless otherwise provided in this
Agreement, ILEC will perform all of its obligations hereunder
throughout its entire service area.
The Network Elements, Combinations or Local Services provided pursuant
to this Agreement may be connected to other Network Elements,
Combinations or Local Services provided by ILEC or to any Network
Elements, Combinations or Local Services provided by CLEC itself or by
any other vendor.
Subject to the requirements of this Agreement, CLEC may, at any time
add, delete, relocate or modify the Local Services, Network Elements or
Combinations purchased hereunder. ILEC will not discontinue any Network
Element, Combination or Local Service provided hereunder without the
prior mutual agreement of the Parties or the approval of the
Commission.
B. In the performance of their obligations under this Agreement, the
Parties shall act in good faith and consistently with the intent of the
Act. Where notice, approval or similar action by a Party is permitted
or. required by any provision of this Agreement, (including, without
limitation, the obligation of the Parties to further negotiate the
resolution of new or open issues under this Agreement) such action
shall not be unreasonably delayed, withheld or conditioned.
C. ILEC shall not reconfigure, re-engineer or otherwise redeploy its
network in a manner which would impair CLEC's ability to offer
Telecommunications Services in the manner contemplated by this
Agreement, the Act or the FCC's Rules and Regulations. The Parties
agree that all obligations undertaken pursuant to this Agreement,
including without limitation, performance standards, intervals, and
technical requirements are material obligations hereof and that time is
of the essence.
D. Whenever CLEC requests the use of facilities not currently in place or
when it requests services or facilities superior in quality to the
highest quality of these three items: (1) requirements of FCC rules,
(2) requirements of Commission rules or orders, or (3) the level of
quality ILEC provides to itself or its Affiliates or its end user
subscribers, CLEC must compensate ILEC fully for the additional costs
of providing the requested facilities or superior services or
facilities.
PART I: GENERAL TERMS AND CONDITIONS
1. TERM
1.1 When executed by authorized representatives of ILEC and CLEC,
this Agreement shall become effective upon Commission approval, and
shall expire on September 11, 2000, unless renewed by agreement of the
Parties or terminated earlier in accordance with the provisions of this
Agreement. Notwithstanding the foregoing sentence, the provisions for
xxxx and keep set forth elsewhere in this Agreement shall exist for an
interim period only and shall be coterminous with the interim period
for xxxx and keep established in the Commission's Order 96-021 in
Docket CP 1, including any changes thereto that may be ordered by the
Commission.
1.2 ILEC shall give CLEC notice of the impending expiration of
this Agreement (or any renewable term thereof) ninety (90) days before
such expiration. The Parties shall have the right to extend the term of
this Agreement, upon mutual agreement, for successive one-year periods
("Renewal Year") upon expiration of the initial term or any subsequent
Renewal Year. At the expiration of the term of this Agreement, or any
renewal thereof, this Agreement shall continue in effect, on a
month-to-month basis, at the same terms, conditions and prices as those
in effect at the end of the latest term or renewal.
1.3 CLEC may elect at any time to terminate this Agreement, in
whole or in part, upon sixty (60) days written notice to ILEC. In such
case, and except as provided in this paragraph, CLEC's liability shall
be limited to payment of the amounts due for Network Elements,
Combinations and Local Services provided up to and including the date
of termination. ILEC recognizes that the Network Elements, Combinations
and Local Services provided hereunder are vital to CLEC and must be
continued without interruption, and that upon the termination or
expiration of this Agreement, CLEC may itself provide or retain another
vendor to provide such comparable Network Elements, Combinations or
Local Services. ILEC agrees to cooperate in an orderly and efficient
transition to CLEC or another vendor. ILEC further agrees to
co-ordinate the orderly transition to CLEC or another vendor such that
the level and quality of the Network Elements, Combinations and Local
Services is not degraded and to exercise its best efforts to effect an
orderly and efficient transition. CLEC may terminate any Local
Service(s), Network Element(s) or Combination(~) provided under this
Agreement upon thirty (30) days written notice to ILEC, unless a
different notice period or different conditions are specified for
termination of such Local
Service(s), Network Element(s) or Combination(s) in this Agreement, in
which event such specific period and conditions shall apply.
1.4 In the event of breach of any material provision of this
Agreement by either Party, the non-breaching Party shall give the other
Party written notice thereof, and:
1.4.1 If such material breach is for non-payment of amounts
due hereunder pursuant to Attachment 7, Section 13, the
breaching Party shall cure such breach within thirty (30) days
of receiving such notice. The non-breaching Party shall be
entitled to pursue all available legal and equitable remedies
for such breach. Amounts disputed in good faith and withheld
or set off shall not be deemed "amounts due hereunder" for the
purpose of this provision.
1.4.2 If such material breach is for any failure to perform in
accordance with this Agreement, which, in the sole judgment of
the non-breaching Party, adversely affects the non-breaching
Party's subscribers, the non-breaching Party shall give notice
of the breach and the breaching Party shall cure such breach
to the non-breaching Party's reasonable satisfaction within
ten (10) days or within a period of time equivalent to the
applicable interval required by this Agreement, whichever is
shorter, and if breaching Party does not, the non-breaching
Party may, at its sole option, terminate this Agreement, or
any parts hereof. The non-breaching Party shall be entitled to
pursue all available legal and equitable remedies for such
breach. For the purpose of this Subsection 1.4.2, notice may
be given electronically or by facsimile and in such case shall
be deemed received when sent.
1.4.3 If such material breach is for any other failure to
perform in accordance with this Agreement, the breaching Party
shall cure such breach to the non-breaching Party's reasonable
satisfaction within forty-five (45) days, and if the breaching
Party does not, the non-breaching Party may, at its sole
option terminate this Agreement, or any parts hereof. The
non-breaching Party shall be entitled to pursue all available
legal and equitable remedies for such breach.
1.5 In the event of such termination as described in this Section
1, for service arrangements made available under this Agreement and
existing at the time of termination, those arrangements shall continue
without interruption.
2. PAYMENT
2.1 Amounts payable under this Agreement are due and payable
within thirty (30) days after the receipt of ILEC's invoice unless
properly disputed under this Agreement or applicable Tariff.
3. TAXES
3.1 Any federal, state or local excise, sales, or use taxes
(excluding any taxes levied on income) resulting from the performance
of this Agreement shall be borne by the Party upon which the obligation
for payment is imposed under applicable law, even if the obligation to
collect and remit such taxes is placed upon the other Party. Any such
taxes shall be shown as separate items on applicable billing documents
between the Parties. The Party so obligated to pay any such taxes may
contest the same in good faith, at its own expense, and shall be
entitled to the benefit of any refund or recovery, provided that such
Party shall not permit any lien to exist on any asset of the other
Party by reason of the contest. The Party obligated to collect and
remit shall cooperate in any such contest by the other Party.
4. AUDITS AND INSPECTIONS
4.1 As used herein "Audit" shall mean a comprehensive review of
services performed under this Agreement; "lnspection" shall mean an
inquiry into a specific element of or process related to services
performed under this Agreement. CLEC may perform up to four (4) Audits
per 12-month period commencing with the Effective Date. CLEC may
perform Inspections as CLEC deems necessary. Subject to ILEC's
reasonable security requirements and-except as may be otherwise
specifically provided in this Agreement, CLEC may audit ILEC's books,
records, documents, and processes, among other things, to ensure the
accuracy of ILEC's billing and invoicing and evaluating compliance with
the terms and conditions of this Agreement and ILEC performance related
thereto. CLEC may employ other persons or firms for this purpose. Such
audit shall take place at a time and place agreed on by the Parties no
later than thirty (30) days after notice thereof to ILEC.
4.2 ILEC shall promptly correct any billing error that is revealed
in an audit, including making refund of any overpayment by CLEC in the
form of a credit on the invoice for the first full billing cycle after
the Parties have agreed upon the accuracy of the audit results. Any
Disputes concerning audit results shall be resolved pursuant to the
Alternate Dispute Resolution procedures described in Section 11 below.
4.3 ILEC shall co-operate fully in any such audit, providing
reasonable access to any and all appropriate ILEC employees, ILEC
facilities (e.g., conference rooms, telephones, copying machines),
books, records and other documents reasonably necessary to assess the
accuracy of ILEC's bills.
4.4 CLEC may audit ILEC's books, records and documents more
frequently than provided in Section 4.1 preceding during any Contract
Year if the previous audit found previously uncorrected net variances
or errors in invoices in ILEC's favor with an aggregate value of at
least one percent (1%) of the amounts payable by CLEC for Local
Services, Network Elements or Combinations provided during the period
covered by the audit.
4.5 Audits shall be at CLEC's expense, subject to reimbursement-
by ILEC in the event that an audit finds an adjustment in the charges
or in any invoice paid or payable by CLEC hereunder by an amount that
is, on an annualized basis, greater than one percent (1%) of the
aggregate charges for the Local Services, Network Elements and
Combinations during the period covered by the audit.
4.6 The reasonable cost of special data extractions required by
CLEC to conduct the Audit Examination will be paid for by CLEC. For
purposes of this Section 4.6, 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 CLEC's specifications and at CLEC's
expense, CLEC shall specify at the time of request. whether the program
is to be retained by ILEC for reuse for any subsequent CLEC Audit or
Examination.
4.7 Upon (a) the discovery by ILEC of overcharges not previously
reimbursed to CLEC or (b) the resolution of disputed audits, ILEC shall
promptly reimburse CLEC the amount of any overpayment times the highest
interest rate (in decimal value) which may be levied by law for
commercial transactions, compounded daily for the number of days from
the date of overpayment to and including the date that payment is
actually made. In no event, however, shall interest be assessed on any
previously assessed or accrued late payment charges.
4.8 This Section 4 shall survive expiration or termination of this
Agreement for a period of two (2) years after expiration or termination
of this Agreement.
5. INDEMNIFICATION.
5.1 Each of the Parties agrees to release, indemnify, defend and
hold harmless the other Party and each of its officers, directors,
employees and agents (each, an "Indemnitee") from and against and in
respect of any loss, debt, liability, damage, obligation, claim,
demand, judgment or settlement of any nature or kind arising out of,
resulting from or based upon any pending or threatened claim, action,
proceeding or suit by any third party known or unknown, liquidated or
unliquidated, including, but not limited to, costs and attorneys' fees,
accounting or otherwise, whether suffered, made, instituted, or
asserted by any other party or person alleging any breach of any
representation, warranty or covenant made by such indemnifying Party
(the "Indemnifying Party") in this Agreement, for invasion of privacy,
personal injury to or death of any person or persons, or for loss,
damage to, or destruction of property, whether or not owned by others,
resulting from the Indemnifying Party's performance, breach of
Applicable Law, or status or the actions, breach of Applicable Law, or
status of its employees, agents and subcontractors; for actual or
alleged infringement of any patent, copyright, trademark, service xxxx,
trade name, trade dress, trade secret or any other intellectual
property right, now known or later developed (referred to as
"Intellectual Property Rights"); or for failure to perform under this
Agreement, regardless of the form of action.
5.2 The indemnification provided herein shall be conditioned upon:
5.2.1 Whenever a Claim shall arise for indemnification under
this Section 5, the relevant Indemnitee, as appropriate, shall
promptly notify the Indemnifying Party and request the
Indemnifying Party to defend the same. Failure to so notify
the Indemnifying Party shall not relieve the Indemnifying
Party of any liability that the Indemnifying Party might have,
except to the extent that such failure prejudices the
Indemnifying Party's ability to defend such Claim.
5.2.2 The Indemnifying Party shall have the right to defend
against such liability or assertion in which event the
lndemnifying Party shall give written notice to the
Indemnitee of acceptance of the defense of such Claim and the
identity of counsel selected by the Indemnifying Party.
Except as set forth below, such notice to the relevant
Indemnitee shall give the Indemnifying Party full authority
to defend, adjust, compromise or settle such Claim with
respect to which such notice shall have been given, except to
the extent that any compromise or settlement shall prejudice
the Intellectual Property Rights of the relevant Indemnitees.
The Indemnifying Party shall consult with the relevant
Indemnitee prior to any compromise or settlement that would
affect the Intellectual Property Rights or other rights of
any Indemnitee, and the relevant Indemnitee shall have the
right to refuse such compromise or settlement and, at the
refusing Party's or refusing Parties' cost, to take over such
defense, provided that in such event the Indemnifying Party
shall not be responsible for, nor shall it be obligated to
indemnify the relevant Indemnitee against, any cost or
liability in excess of such refused compromise or settlement.
With respect to any defense accepted by the Indemnifying
Party, the relevant Indemnitee shall be entitled to
participate with the Indemnifying Party in such defense if
the Claim requests equitable relief or other relief that
could affect the rights of the Indemnitee and also shall be
entitled to employ separate counsel for such defense at such
Indemnitee's expense. In the event the Indemnifying Party
does not accept the defense of any indemnified Claim as
provided above, the relevant Indemnitee shall have the right
to employ counsel for such defense at the expense of the
Indemnifying Party. Each Party agrees to cooperate and to
cause its employees and agents to cooperate with the other
Party in the defense of any such Claim and the relevant
records of each Party shall be available to the other party
with respect to any such defense.
6. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
6.1 Neither Party shall be liable to the other for any costs
whatsoever resulting from the presence or release of any Environmental
Hazard that the other Party introduced to the affected Work Location.
Both Parties shall defend and hold harmless the other, its officers,
directors and employees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) that arise out of or result from
(a) any Environmental Hazard that the indemnifying Partj, its
contractors or agents introduce to its Work Locations, or (b) the
presence or release of any Environmental Hazard for which the
indemnifying Party is responsible under Applicable Law.
6.2 In the event any suspect materials within ILEC-owned, operated
or leased facilities are identified to be asbestos-containing, CLEC
will ensure that to the extent any activities which it undertakes in
the facility disturb such suspect materials, such CLEC activities will
be in accordance with applicable local, state and federal environmental
health and safety statutes and regulations. Except for abatement
activities undertaken by CLEC or equipment placement activities that
result in the generation of asbestos containing material, CLEC shall
not have any responsibility for managing, nor be the owner of, not
have any liability for, or in connection with, any asbestos containing
material. ILEC agrees to immediately notify CLEC if ILEC undertakes any
asbestos control or asbestos abatement activities that potentially
could affect CLEC equipment or operations, including, but not limited
to, contamination of equipment.
7. LIMITATION OF LIABILITY
7.1 Liabilities of CLEC - CLEC's liability to ILEC during any
Contract Year resulting from any and all causes, other than as
specified in this Agreement shall not exceed the amount due and owing
by CLEG to ILEC under this Agreement during the Contract Year during
which such cause accrues or arises.
7.2 Liabilities of ILEC - ILEC's liability to CLEC during any
Contract Year resulting from any and all causes, other than as
specified below in Section 8 following, and in Section 10 shall not
exceed the total of any amounts due and owing to CLEC pursuant to
Service Parity; Service Guarantees and the Attachment related thereto,
plus any amounts due and owing by CLEC to ILEC under this Agreement
during the Contract Year during which such cause accrues or arises.
7.3 Neither Party shall be liable to the other for any indirect,
incidental, special or consequential damages arising out of or related
to this Agreement or the provision of service hereunder.
Notwithstanding the foregoing limitations, a Party's liability shall
not be limited by the provisions of this Section 7 in the event of its
willful or intentional misconduct, including gross negligence, or its
repeated breach of any one or more of its material obligations under
this Agreement. A Party's liability shall not be limited with respect
to its indemnification obligations.
7.4 The limitations set forth in Sections 7.1, 7.2 and 7.3 shall
not apply to a Party's liability in the event of its willful or
intentional misconduct, including its gross negligence, or its repeated
breach of any one or more of its material obligations under this
Agreement.
FOR PURPOSES OF THIS SECTION 7, AMOUNTS DUE AND OWING TO CLEC PURSUANT
TO THE SECTION ON SERVICE PARITY, SERVIGE GUARANTEES AND THE ATTACHMENT
REFERENCED IN THAT SECTION SHALL NOT BE CONSIDERED TO BE INDIRECT,
INCIDENTAL, CONSEQUENTIAL, RELIANGE, OR SPEGIAL DAMAGES.
8. REMEDIES FOR FAILURE TO MEET SERVICE QUALITY STANDARDS
8.1 ILEC will provide all Local Services, Network Elements or
Combinations in accordance with service standards, measurements, and
performance requirements, that are expressly specified in this
Agreement and the Commission's rules. In cases where such service
quality standards are not expressly specified, ILEC will provide all
Local Services, Network Elements or Combinations in accordance with
quality standards which are at least equal or superior to the level of
service quality that ILEC is required to meet by its own internal
procedures, or by standards set forth in Oregon statutes or rules or in
FCC rules or regulations, in providing Local Service, Network Elements
or Combinations to itself, to its end-users or to its Affiliates. In
the event CLEC wants a level of service quality in excess or superior
to that provided in this paragraph, CLEC must (a) request that quality
of service through the BFR process specified herein; and (b) compensate
ILEC fully for the additional incremental costs of providing the
requested facilities or superior services or facilities.
8.2 ILEC acknowledges that remedies at law alone are inadequate to
compensate CLEC for failures to meet the service quality standards
requirements specified by this Agreement, failures to install or
provision Network Elements, Combinations or Services in accordance with
the Due Dates specified in this Agreement, or for failures to provide
Customer Usage Data in accordance with this Agreement. CLEC shall have
the right to seek injunctive relief and other equitable remedies (in
addition to remedies provided in this Agreement, at law and through
administrative process) to require ILEC (a) to cause the Network
Elements, Combinations or Services ordered by CLEC to meet the service
quality standards requirements specified by this Agreement, (b) to
install or provision the Network Elements, Combinations or Services
ordered by CLEC within the Due Dates specific in this Agreement, and
(c) to provide Customer Usage Data in accordance with this Agreement.
8.3 Service quality concerns which cannot be addressed through
informal processes may be dealt with through (a) the Dispute Resolution
procedure set forth in this Agreement; (b) the formal complaint
procedures established by the Commission; or (c) other available
forums.
9. WARRANTIES
9.1 Except as otherwise provided herein, each Party shall perform
its obligations hereunder at a performance level no less than the
highest level which
it uses for its own operations, or those of its Affiliates, but in no
event shall a Party use less than reasonable care in the performance of
its duties hereunder.
9.2 ILEC warrants that Local Interconnection will be provided in a
competitively neutral fashion, at any technically feasible point within
its network at CLEC's request, and that such interconnection will
contain all the same features, functions and capabilities, and be at
least equal in quality to the highest level provided by ILEC to itself
or its Affiliates. ILEC shall have the full burden of proving that a
requested Interconnection Point ("IP") is not technically feasible. To
the extent ILEC proves infeasibility, ILEC shall be required to provide
to CLEC an alternative IP which will not impair CLEC's ability to
provide its Telecommunications Services. Such alternative P shall be
technically equivalent to the requested IP.
9.3 ILEC warrants that it will provide to CLEC on a
nondiscriminatory basis unbundled Network Elements and ancillary
services, including, but not limited to, local loop, local switching,
tandem switching/transit switching, transport, data switching,
intelligent network and advanced intelligent network, operator service,
directory assistance, 911, white and yellow pages, and repair and
maintenance, at any technically feasible points requested by CLEC, and
all operations support systems used and useful in the preordering,
ordering, provisioning, design, engineering, maintenance, repair,
tracking, management, billing and any other function or functionality
associated directly or indirectly with unbundled Network Elements and
ancillary services. ILEC further warrants that these services, or their
functional components, will contain all the same features, functions
and capabilities and be provided at a level of quality at least equal
to the highest level which it provides to itself or its Affiliates.
ILEC shall have the full burden of proving that access requested by
CLEC is not technically feasible. To the extent ILEC proves
infeasibility, ILEC shall be required to provide to CLEC an alternative
service, which will not impair CLEC's ability to provide its
Telecommunications Services. Such alternative service shall be
technically equivalent to the requested service.
9.4 ILEC warrants that it will provide to CLEC nondiscriminatory
access to poles, pole attachments, ducts, innerducts, conduits,
building entrance facilities, building entrance links, equipment rooms,
remote terminals, cable vaults, telephone closets, building risers,
rights of way, and other pathways owned or controlled by ILEC, using
capacity currently available or that can be made available. ILEC shall
take all reasonable steps to accommodate requests for access to its
facilities, including modifying or rearranging facilities to increase
capacity. ILEC shall have the full burden of proving that such access
is not technically feasible. To the extent ILEC proves infeasibility,
ILEC shall be required to provide to CLEC alternative suitable access
which will not impair CLEC's ability to provide its Telecommunications
Services. Such alternative access shall be technically equivalent to
the requested access.
9.5 ILEC warrants that it will provide to CLEC, in a competitively
neutral fashion, unbundled local loops, network interface devices or
units, loop distribution, digital loop carrier/analog cross connect,
and loop feeders, that
contain all the same features, functions, and capabilities that ILEC
makes available to itself in provision of its Telecommunications
Services or to its Affiliates, with at least the same quality of
service, order processing, provisioning and installation, trouble
resolution, maintenance, customer care, and billing, as the highest
quality ILEC provides equivalent features, functions and capabilities
to itself, its Affiliates, or its own subscribers. ILEC shall have the
full burden of proving that access to the unbundled local loop or any
of its unbundled components is not technically feasible. To the extent
ILEC proves infeasibility, ILEC shall be required to provide to CLEC
alternative suitable facilities which will not impair CLEC's ability to
provide its Telecommunications Services. Such alternative facilities
shall be technically equivalent to the requested access.
9.6 ILEC warrants that it will provide to CLEC unbundled transport
and its. components, including common transport, dedicated transport,
with and without electronics, and multiplexing/digital cross connect,
with all the same features, functions and capabilities, and with at
least the same quality level which ILEC provides to itself or its
Affiliates in provision of its, or such Affiliate's, Telecommunications
Services, and that such services will be provided in a competitively
neutral fashion. ILEC shall have the full burden of proving that access
to unbundled transport or any unbundled transport components is not
technically feasible. To the extent ILEC proves infeasibility, ILEC
shall be required to provide to CLEC alternative suitable facilities
which will not impair CLEC's ability to provide its Telecommunications
Services. Such alternative facilities shall be technically equivalent
to the requested access.
9.7 ILEC warrants that it will provide unbundled local switching
and its functional components, including line port, trunk port, and
switching capacity, including all features, functions and capabilities,
and nondiscriminatory access via electronic interface to databases and
associated signaling needed for call routing, call completion, and
service creation, and to create and xxxx the communications path, all
at the same or better grade of service that ILEC provides to itself or
its Affiliates, unless service degradation is due to CLEC purchasing
insufficient capacity to meet its own demand. ILEC further warrants
that unbundled local switching and its functional components will be
provided in a competitively neutral fashion. ILEC shall have the full
burden of proving that access to unbundled local switching or its
functional components is not technically feasible. To the extent ILEC
proves infeasibility, ILEC shall be required to provide to CLEC
alternative suitable facilities which will not impair CLEC's ability to
provide its Telecommunications Services. Such alternative facilities
shall be technically equivalent to the requested access.
9.8 ILEC warrants that it will provide nondiscriminatory access to
telephone numbers.
9.9 ILEC warrants that it will provide to CLEC, in a competitively
neutral fashion, interim number portability with the same features,
functions and capabilities that ILEC provides to itself or its
Affiliates, and with as little impairment of functioning, quality,
reliability, and convenience as possible, and that it will provide such
service as required by the FCC in Telephone Number
Portability, CC Docket No. 95-116, First Report and Order, released
July 2, 1996.
9.10 ILEC warrants that it will provide to CLEC, in a competitively
neutral fashion, dialing parity for local exchange service and
interexchange service with the same features, functions and
capabilities that ILEC provides to itself or its Affiliates, and that
it will provide such service as required by the FCC in Implementation
of the Local Competition Provisions of the Telecommunications Act of
1996, so that CLEC's subscribers experience no greater post-dial delay
than similarly-situated ILEC subscribers, and are not required to dial
any greater number of digits than similarly situated ILEC subscribers.
9.11 ILEC warrants that with respect to Local Resale, order entry,
provisioning, installation, trouble resolution, maintenance, customer
care, billing, and service quality will be provided at least as
expeditiously as ILEC provides for itself or for its own retail local
service or to others, or to its Affiliates, and that it will provide
such services to CLEC in a competitively neutral fashion and at a level
of quality which allows CLEC in turn to provide Local Resale at a level
of quality equal to the highest level of quality ILEC provides for
itself for its own retail local service or to others, or to its
Affiliates. ILEC warrants further that it will impose no restrictions
on CLEC's resale of these services unless specifically sanctioned by
the FCC or the Commission.
9.12 ILEC warrants that it will provide on a nondiscriminatory
basis space on its premises for physical or virtual collocation, as
CLEC may specify, consistent with FCC and Commission regulations and
orders, for equipment necessary for CLEC's interconnection and access
to unbundled network elements.
10. NONEXCLUSIVE REMEDIES
10.1 Except as otherwise expressly provided in this Agreement, each
of the remedies provided under this Agreement is cumulative and is in
addition to any remedies that may be available at law or in equity.
10.2 In the event ILEC fails to switch a subscriber to CLEC service
as requested through a CLEC service request, within the intervals set
forth in this Agreement, the continued provision of Telecommunications
Services by ILEC to such subscriber shall be deemed an illegal change
in subscriber carrier selection commencing with the time at which ILEC
failed to switch such subscriber. In such event ILEC shall reimburse
CLEC in an amount equal to all charges paid by such subscriber to ILEC
from the time of such failure to switch to the time at which the
subscriber switch is accomplished. This remedy shall be in addition to
all other remedies available to CLEC under this Agreement or otherwise
available.
This same remedy shall apply in the event that either CLEC or ILEC
makes an unauthorized change in the local exchange service provider of
an end user.
10.3 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 at law or equity in case of any breach or
threatened breach by the other Party of any provision of this
Agreement. Use of one or more remedies shall not bar use of any other
remedy for the purpose of enforcing the provisions of this Agreement.
11. DISPUTE RESOLUTION
11.1 All disputes, claims or disagreements (collectively
"Disputes") arising under or related to this Agreement or the breach
hereof, except those arising pursuant to Attachment 7 Connectivity
Billing, shall be resolved according to the procedures set forth in
Section 11.2 below. Disputes involving matters subject to the
Connectivity Billing provisions contained in Attachment 7, shall be
resolved in accordance with the Billing Disputes section of Attachment
7. The foregoing notwithstanding, the provisions of this Section 11
shall not be construed to prevent either Party from seeking and
obtaining temporary equitable remedies, including temporary restraining
orders. A request by a Party to a court or a regulatory authority for
interim measures or equitable relief shall not be deemed a waiver of
the obligation to comply with the provisions of this Section 11.
11.2 The Parties recognize and agree that the Commission has
continuing-jurisdiction to implement and enforce all terms and
conditions of this Agreement. Accordingly, the Parties agree that any
dispute arising out of or relating to this Agreement that the Parties
themselves cannot resolve, may be submitted to the Commission for
resolution. The Parties agree to seek expedited resolution by the
Commission, and shall request that resolution occur in no event later
than sixty (60) days from the date of submission of such dispute. If
the Commission appoints an expert(s) or other facilitator(s) to assist
in its decision making, the losing party shall pay the fees and
expenses so incurred.
11.3 In cases where the Commission determines that neither Party
has, in some material respect, completely prevailed or lost in a
proceeding, the Commission shall, in its discretion, apportion expenses
to reflect the relative success of each Party. Those fees and expenses
not directly related to a particular proceeding shall be shared
equally. In the event that the Parties settle a dispute before the
Commission reaches a decision with respect to that dispute, the
Settlement Agreement must specify how the fees and expenses for the
particular proceeding will be apportioned.
11.4 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. This
provision shall not preclude the Parties from seeking relief available
in any other forum.
12. NONDISCLOSURE/CONFIDENTIALITY AND PROPRIETARY INFORMATION
12.1 All information which is disclosed by one Party to the other
in connection with this Agreement shall automatically be deemed
proprietary to the Discloser and subject to this Agreement, unless
otherwise confirmed in writing by the Discloser. In addition, by way of
example and not limitation, all orders for Local Services, Network
Elements or Combinations placed by CLEC pursuant to this Agreement, and
information that would constitute Customer Proprietary Network
Information of CLEC customers pursuant to the Act and the rules and
regulations of the Federal Communications Commission ("FCC"), and
Recorded Usage Data as described in Attachment 8, whether disclosed by
CLEC to ILEC or otherwise acquired by ILEC in the course of the
performance of this Agreement, shall be deemed Confidential Information
of CLEG for all purposes under this Agreement.
12.2. The Recipient may make copies of Confidential Information only
as reasonably necessary to perform its obligations under this
Agreement. All such copies shall bear the same copyright and
proprietary rights notices as are contained on the original. Upon
request by the Discloser, the Recipient shall return all tangible
copies within thirty (30) days of Proprietary Information, whether
written, graphic or otherwise, except that the Recipient may retain one
copy for archival purposes. lf either Party loses or makes an
unauthorized disclosure of the other Party's Confidential Information,
it shall notify such other-Party immediately and use reasonable efforts
to retrieve the lost or wrongfully disclosed information.
12.3. For a period of five (5) years from the receipt of
Confidential Information, each Party shall keep all of the other
Party's Proprietary Information confidential and shall use the other
Party's Proprietary Information only for performing the covenants
contained in this Agreement. Neither Party shall use the other Party's
Proprietary Information for any other purpose except upon such terms
and conditions as may be agreed upon between the Parties in writing.
12.4 Unless otherwise agreed, the obligations of confidentiality
and non-use set forth in this Agreement do not apply to such
Proprietary Information as:
12.4.1 was at the time of receipt already known to the
receiving Party free of any obligation to keep it confidential
evidenced by written records prepared prior to delivery by the
disclosing Party; or
12.4.2 is or becomes publicly known through no wrongful act
of the receiving Party; or
12.4.3 is rightfully received from a third person having no
direct or indirect secrecy or confidentiality obligation to
the disclosing Party with respect to such information; or
12.4.4. is independently developed by an employee, agent, or
contractor of the receiving Party which individual is not
involved in any manner with
the provision of services pursuant to this Agreement and does
not have any direct or indirect access to the Proprietary
Information; or
12.4.5 is disclosed to a third person by the disclosing Party
without similar restrictions on such third person's rights; or
12.4.6 is approved for release by written authorization of the
disclosing Party; or
12.4.7 is required to be made public by the receiving Party
pursuant to applicable law or regulation provided that the
receiving Party shall give sufficient notice of the
requirement to the disclosing Party to enable the disclosing
Party to seek protective orders.
12.5 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration or termination of this Agreement shall
survive such expiration or termination.
12.6 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Agreement by the Recipient or its
representatives and that the Discloser shall be entitled to seek
equitable relief, including injunctive relief and specific performance,
in the event of any breach of the provisions of this Agreement. Such
remedies shall not be deemed to be the exclusive remedies for a breach
of this Agreement, but shall be in addition to all other remedies
available at law or in equity.
12.7 CPNI related to CLEC's subscribers obtained by virtue of Local
Interconnection or any other service provided under this Agreement
shall be CLEC's proprietary information and may not be used by ILEC for
any purpose except performance of its obligations under this Agreement,
and in connection with such performance, shall be disclosed only to
employees with a need to know, unless the CLEC subscriber expressly
directs CLEC to disclose such information to ILEC pursuant to the
requirements of Section 222(c)(2) of the Act. If ILEC seeks and obtains
written approval to use or disclose such CPNI from CLEC's subscribers,
such approval shall be obtained only in compliance with Section
222(c)(2) and, in the event such authorization is obtained, ILEC may
use or disclose only such information as CLEC provides pursuant to such
authorization and may not use information that ILEC has otherwise
obtained, directly or indirectly, in connection with its performance
under this Agreement. CPNI related to ILEC's subscribers obtained by
virtue of Local Interconnection shall be ILEC's proprietary information
and may not be used by CLEC for any purpose except performance of its
obligations under this Agreement, and in connection with such
performance shall be disclosed only to employees with a need to know,
unless the ILEC subscriber expressly directs ILEC to disclose such
information to CLEC pursuant to the requirements of Section 222(c)(2)
of the Act. If CLEC seeks and obtains written approval to use or
disclose such CPNI from ILEC's subscribers, such approval shall be
obtained only in compliance with Section 222(c)(2) of the Act and, in
the event such authorization is obtained, CLEC may use or disclose only
such information as ILEC provides
pursuant to such authorization and may not use information that CLEC
has otherwise obtained, directly or indirectly, in connection with its
performance under this Agreement.
13. CUSTOMER CREDIT HISTORY
13.1 CLEC and ILEC agree to make available to a designated
third-party credit bureau, on a timely basis, such of the following
customer payment history information that is available for each person
or entity that applies for local or IntraLATA toll Telecommunications
Service(s) from either carrier. Such information shall be provided on
the condition that the credit bureau will only make such information
available to the carrier to which the person or entity in question has
applied for Telecommunication Service.
Applicants name;
Applicant's address;
Applicant's previous phone number; if any;
Amount, if any, of unpaid balance in applicant's name
Whether applicant is delinquent on payments;
Length of service with prior local or IntraLATA toll provider;
Whether applicant had local or IntraLATA toll service
terminated or suspended within the last six months with an
explanation of the reason therefor; and
Whether applicant was required by prior local or IntraLATA
toll provider to pay a deposit or make an advance payment,
including the amount of each.
14. BRANDING
14.1 Services offered by CLEC that incorporate Network Elements or
Combinations made available to CLEG pursuant to this Agreement, and
Local Services that CLEC offers for resale shall, at CLEC's sole
discretion, be branded exclusively as CLEC services, or otherwise, as
CLEC shall determine. CLEC shall provide the exclusive interface to
CLEC Customers in connection with the marketing, offering or provision
of CLEC services, except as CLEC shall otherwise specify. In those
instances where CLEC requires ILEC personnel to interface directly with
CLEC Customers, either orally in person or by telephone, or in writing,
such personnel shall identify themselves as representing CLEC, and
shall not identify themselves as representing ILEC. All forms, business
cards or other business materials furnished by ILEC to CLEC Customers
shall be subject to CLEC's prior review and approval, and shall bear no
corporate name, logo, trademark or trade name other than CLEC's or such
other brand as CLEC shall determine. In no event shall ILEC personnel
acting on behalf of CLEC pursuant to this Agreement provide information
to CLEG local service customers about ILEC products or services. ILEC
shall provide, for CLEC's review and approval, the methods and
procedures, training and approaches to be used by ILEC to ensure that
ILEC meets CLEC's branding requirements. No provision of this
Section 15 should be interpreted to require ILEC personnel to change
placards on service vehicles or to remove uniforms bearing the ILEC
logo. -
15. PATENTS, TRADEMARKS
15.1. Except for a limited license to use patents or copyrights to
the extent necessary for the Parties to use any facilities or equipment
(including software) or to receive any service solely as provided under
this Agreement, nothing in this Agreement shall be construed as the
grant of a license, either express or implied, with respect to any
patent, copyright, logo, trademark, trade secret or any other
proprietary or intellectual property right now or hereafter owned
controlled or licensable by each Party. CLEC or Reseller may not use
any logo, trademark or other intellectual property right of ILEC
without execution of. a separate agreement between the Parties. It is
the responsibility of each Party to ensure at no additional cost to the
other Party that it has obtained any necessary licenses in relation to
intellectual property of third parties used in its network that may be
required to enable the other Party to use any facilities or equipment
(including software), to receive any service, or to perform its
respective obligations under this Agreement.
15.2 Unless otherwise mutually agreed upon, neither Party shall
publish or use the other Party's logo, trademark, service xxxx, name,
language, pictures, or 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.
16. PUBLICITY AND ADVERTISING
16.1 Neither Party shall publish or use any advertising, sales
promotions or other publicity materials that use the other Party's
logo, trademarks or service marks without the prior written approval of
the other Party.
17. FORCE MAJEURE
17.1 Except as otherwise specifically provided in this Agreement,
neither Party shall be responsible for any delay or failure in
performance resulting from acts or occurrences beyond the reasonable
control of such Party and without its fault or negligence, regardless
of whether such delays or failures in performance were foreseen or
foreseeable as of the date of this Agreement, including,, without
limitation: fire, explosion, power failure, acts of God, war,
revolution, civil commotion, or acts of public enemies; any law, order,
regulation, ordinance or requirement of any government or legal body;
or labor unrest, including, without limitation, strikes, slowdowns,
picketing or boycotts; or delays caused by the other Party or by other
service or equipment vendors; or any other circumstances beyond the
Party's reasonable control. In such event, the Party affected shall,
upon giving prompt notice to the other Party, be excused from such
performance on a day-to-day basis to the extent of such interference
(and the other Party shall likewise be excused from performance of its
obligations on a day-to-day basis to
the extent such Party's obligations relate to the performance so
interfered with). The affected Party shall use its best efforts to
avoid or remove the cause of non-performance and both Parties shall
proceed to perform with dispatch once the causes are removed or cease.
In the event of such performance delay or failure by ILEC, ILEC agrees
to resume performance in a nondiscriminatory manner and not favor its
own provision of Telecommunications Services above that of CLEC. For
purposes of this Agreement, Force Majeure shall not include acts of any
Governmental Authority relating to environmental, health or safety
conditions at work locations.
18. WAIVER
18.1 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. 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 on its part of any such provision, but the
same shall, nevertheless, be and remain in full force and effect.
Waiver by either Party of any default by the other Party shall not be.
deemed a waiver of any other default. By entering into this Agreement
CLEC does not waive any right granted to it pursuant to the Act.
19. GOVERNING LAW/COMPLIANCE WITH LAWS
19.1 This Agreement shall be deemed to be a contract made under and
shall be construed, interpreted and enforced in accordance with the
laws of the state of Oregon. Insofar as matters of federal law or
regulation are exclusively concerned, the Parties agree to the
exclusive jurisdiction of the federal court for the state of Oregon.
Issues or matters exclusively arising under state law or regulation may
be heard by the state court which would otherwise have jurisdiction
over such issue or matter. CLEC and ILEC each shall comply at its own
expense with all Applicable Law that relates to (a) its obligations
under or activities in connection with this Agreement; or (b) its
activities undertaken at, in connection with or relating to Work
Locations.
ILEC will be solely responsible for obtaining from governmental'
authorities, building owners, other carriers, and any other persons or
entities, all rights and privileges (including, but not limited to,
space and power), which are necessary for ILEC to provide the Network
Elements and Local Services pursuant to this Agreement.
19.2 ILEC shall be responsible for obtaining and keeping in effect
all Federal Communications Commission, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with the performance of its obligations under this
Agreement. CLEC shall be responsible for obtaining and keeping in
effect all Federal Communications Commission, state regulatory
commission, franchise authority and other regulatory approvals that
may be required in connection with its offering of services to CLEC
Customers contemplated by this Agreement. CLEC shall reasonably
cooperate with ILEC in obtaining and maintaining any required approvals
for which ILEC is responsible, and ILEC shall reasonably cooperate with
CLEC in obtaining and maintaining any required approvals for which CLEC
is responsible.
19.3 In the event that ILEC is required by any governmental
authority to file a tariff or make another similar filing in connection
with the performance of any action that would otherwise be governed by
this Agreement, ILEG shall (a) consult with CLEC reasonably in advance
of such filing about the form and substance of such filing, (b) provide
to CLEC its proposed tariff prior to, or at the time of, such filing,
and (c) take all steps reasonably necessary to ensure that such tariff
or other filing imposes obligations upon ILEC that are identical to
those provided in this Agreement and preserves for CLEC the full
benefit of the rights otherwise provided in this Agreement.
19.4 If, subsequent to the effective date of any such tariff, ILEC
is ordered not to file tariffs with the State regulatory commission or
the Federal Communications Commission, or is permitted not to file
tariffs (and elects not to do so), either generally or for specific
Network Elements, Combinations or Local Services, the terms and
conditions of such tariffs as of the date on which the requirement to
file such tariffs was lifted shall, to the degree not inconsistent
with-this Agreement, be deemed incorporated in this Agreement by
reference.
19.5 In the event that any final and nonappealable legislative,
regulatory, judicial or other legal action materially affects any
material terms of this Agreement, or the ability of CLEC or ILEC to
perform any material terms of this Agreement, CLEC or ILEC may, on
thirty (30) days' written notice (delivered not later than thirty (30)
days following the date on which such action has become legally binding
and has otherwise become final and nonappealable) require that such
terms be renegotiated, and the Parties shall renegotiate in good faith
such mutually acceptable new terms as may be required. ln the event
that such new terms are not renegotiated within ninety (90) days after
such notice, the Dispute shall be referred to the Alternative Dispute
Resolution procedures set forth in Section 11 above.
19.6 The Parties shall incorporate into this Agreement the
Commission's decision in Docket UT 132 concerning intraLATA dialing
parity, as well as any price or contract provision modified as a result
of the Commission's reconsideration of, or an appeal of, Commission
Order No. 97-003 in ARB 3/ARB 6 (entered January, 6, 1997). The Parties
shall negotiate mutually acceptable terms for implementing each such
decision within ninety (90) days after it is entered notwithstanding
the time frames established in the preceding paragraph.
20. NO THIRD-PARTY BENEFICIARIES
20.1 Except as may be specifically set forth in this Agreement,
this Agreement does not provide and shall not be construed to provide
third parties with any remedy, claim, liability, reimbursement, cause
of action, or other privilege.
21. RESPONSIBILITY OF EACH PARTY
21.1 Each Party is an independent contractor, and has and hereby
retains the right to exercise full control of and supervision over its
own performance of its obligations under this Agreement and retains
full control over the employment, direction, compensation and discharge
of all employees assisting in the performance of such obligations. Each
Party will be solely responsible for all, matters relating to payment
of such employees, including compliance with social security taxes,
withholding taxes and all other regulations governing such matters.
Each Party will be solely responsible for proper handling, storage,
transport and disposal at its own expense of all (a) substances or
materials that it or its contractors or agents bring to, create or
assume control over at Work Locations, or (b) Waste resulting therefrom
or otherwise generated in connection with its or its contractors' or
agents' activities at the Work Locations. Subject to the limitations on
liability and except as otherwise provided in this Agreement, each
Party shall be responsible for (x) its own acts and performance of all
obligations imposed by Applicable Law in connection with its
activities, legal status and property, real or personal and, (y) the
acts of its own Affiliates, employees, agents and contractors during
the performance of that Party's obligations hereunder.
22. ASSIGNMENT/SUBCONTRACTING
22.1 Neither Party may assign any of its rights or delegate any of
its obligations under this Agreement without the prior written consent
of the other Party which will not be unreasonably withheld.
Notwithstanding the foregoing, ILEC may assign its rights and benefits
and delegate its duties and obligations under this Agreement without
the consent of GLEC to a 100 percent owned affiliate company of ILEC,
provided that the performance of any such assignee is guaranteed by the
assignor. Any prohibited assignment or delegations shall be null and
void.
22.2 Neither Party may subcontract the performance of any
obligation under this Agreement without the prior written consent of
the other Party which shall not be unreasonably withheld. If any
obligation is performed through a subcontractor, ILEC shall remain
fully responsible for the performance of this Agreement in accordance
with its terms, including any obligations it performs through
subcontractors, and ILEC shall be solely responsible for payments due
its subcontractors. No contract, subcontract or other Agreement entered
into by either Party with any third Party in connection with the
provision of Local Services or Network Elements hereunder shall provide
for any indemnity, guarantee or assumption of liability by, or other
obligation of, the other Party to
this Agreement with respect to such arrangement, except as consented
to in writing by the other Party. No subcontractor shall be deemed a
third party beneficiary for any purposes under this Agreement.
23. ENTIRE AGREEMENT
23.1 This Agreement which shall include the Attachments, Appendices
and other documents referenced herein constitutes the entire agreement
between the Parties and supersedes all prior oral or written
agreements, representations, statements, negotiations, understandings,
proposals and undertakings with respect to the subject matter hereof.
24. SEVERABILITY
25.1 Subject to Section 19, Governing Law/Compliance with Laws, if
any term, condition or provision of this Agreement is held to be
invalid or unenforceable for any reason, such invalidity or
unenforceability shall not invalidate the entire Agreement, unless such
construction would be unreasonable. This Agreement shall be construed
as if it did not contain the invalid or unenforceable provision or
provisions, and the rights and obligations of each Party shall be
construed and enforced accordingly; provided, however, that in the
event such invalid or unenforceable provision or provisions are
essential elements of this Agreement-and substantially impair the
rights or obligations of either Party, the Parties shall promptly
negotiate a replacement provision or provisions.
25. AMENDMENTS
25.1 Except as otherwise provided in this Agreement, no amendment
or waiver of any provision of this Agreement, and no consent to any
default under this Agreement, shall be effective unless the same is in
writing and signed by an officer of the Party against whom such
amendment, waiver or consent is claimed. In addition, no course of
dealing or failure of a Party strictly to enforce any term, right or
condition of this Agreement shall be construed as a waiver of such
term, any right granted to it pursuant to the Act, right or condition.
By entering into this Agreement CLEC does not waive any right granted
to it pursuant to the Act.
26. HEADINGS OF NO FORCE OR EFFECT
26.1 - The headings of Articles and Sections of this Agreement are
for convenience of reference only, and shall in no way define, modify
or restrict the meaning or interpretation of the terms or provisions of
this Agreement.
27. NOTICES
27.1 Any notices or other communications required or permitted to
be given or delivered under this Agreement shall be in hard-copy
writing (unless otherwise specifically provided herein) and shall be
sufficiently given if delivered personally,
by certified U. S. Mail or delivered by prepaid overnight express
service to the following (unless otherwise specifically required by
this Agreement to be delivered to another representative or point of
contact):
CLEC
F. Xxxxx Xxxxxx
Vice President-- Finance
J. Xxxxxxx Xxxxx-- Director of Regulatory Affairs
Advanced Telecommunications, Inc.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Phone:(612)519--6642
Fax: (000)000-0000
Copy to: Xxxxx Xxxxxxxx
XXXXX & XXXXXX LLP
0000 X Xxxxxx, XX., Xxxxx 000X
Xxxxxxxxxx, XX 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
ILEC
U S WEST Communications, Inc.
Director - Interconnection Compliance
1801 California, Room 2410
Xxxxxx, XX 00000
with a copy to:
U S WEST Law Department
Attention: General Counsel
Interconnection
0000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
27.2 Either Party may unilaterally change its designated
representative and/or
address for the receipt of notices by giving seven (7) days' prior
written notice to the other Party in compliance with this Section. Any
notice or other communication shall be deemed given when received.
28. JOINT WORK PRODUCT
28.1 This Agreement is the joint work product of representatives of
the Parties. For convenience, it has been drafted in final form by one
of the Parties. Accordingly, in the event of ambiguities, no inferences
will be drawn against either Party solely on the basis of authorship of
this Agreement.
29. EXECUTED IN COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original; but such counterparts shall
together constitute one and the same instrument.
30. REFERENCED DOCUMENTS
30.1 Whenever any provision of this Agreement refers to a technical
reference, technical publication, CLEC Practice, ILEC Practice, any
publication of telecommunications industry administrative or technical
standards, or any other document specifically incorporated into this
Agreement, it will be deemed to be a reference to the most recent
version or edition (including any amendments,. supplements, addenda, or
successors) of such document that is in effect, and will include the
most recent version or edition (including any amendments, supplements,
addenda, or successors) of each document incorporated by reference in
such a technical reference, technical publication, CLEC Practice, ILEC
Practice, or publication of industry standards (unless CLEC elects
otherwise). Should there be an inconsistency between or among
publications or standards, CLEC shall elect which requirement shall
apply.
31. SURVIVAL
32.1 Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this Agreement;
any obligation of a Party under the provisions regarding
indemnification, Confidential Information, limitations on liability,
and any other provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after) termination of this
Agreement, shall survive cancellation or termination thereof.
32. SUCCESSORS AND ASSIGNS
32.1 This Agreement shall be binding upon, and inure to the benefit
of, the Parties hereto and their respective successors and permitted
assigns.
PART II: LOCAL SERVICES RESALE
33. INTRODUCTION
33.1 - At the request of CLEC, and pursuant to the requirements of
the Act, ILEC will make available to CLEC for resale any
Telecommunications Service that LEG currently provides, or may offer
hereafter. ILEC shall also provide Support Functions and Services
Functions as set forth in the Attachments to this Agreement. The
Telecommunications Services, Service Functions and Support Functions
provided by ILEC pursuant to this Agreement are collectively referred
to as "Local Service." This Part, in summary form, and Attachment 2, in
detail, describe several services which ILEC shall make available to
CLEC for resale pursuant to this Agreement. These lists are neither all
inclusive nor exclusive.
34. LOCAL SERVICES RESALE
34.1 General
ILEC shall apply the principles set forth in 47 C.F.R. Section 64.1100
to the process for end-user selection of a primary local exchange
carrier. The prices charged to CLEC for Local Service shall be
wholesale rates determined on the basis of retail rates charged to
subscribers for the telecommunications service requested excluding the
portion thereof attributable to any marketing, billing, collection and
other costs that will be avoided by ILEC. Except `as limited by
Attachment 2, CLEC may resell Local Services to provide
Telecommunications Services to any and all classes of end-users except
for resale of residential service to other classes of customers if this
exception is authorized by the Commission. ILEC shall ensure that all
CLEC Customers experience the same dialing parity as similarly-situated
customers of ILEC services. ILEC will notify CLEC of any changes in the
terms and conditions under which it offers telecommunications services
at retail to subscribers who are not telecommunications service
providers or carriers.
34.2 Specific Services
(a) At CLEC's option, CLEC may purchase the entire set of
CENTREX features or a subset of any one or any combination of
such features, tariffed or non-tariffed.
(b) CLEC may purchase the entire set of CLASS and Custom
features and functions, a subset of or any combination of such
features.
(c) Local Services include certain Voluntary Federal Customer
Financial Assistance Programs.
(d) ILEC shall provide E91 I and 911 Service to CLEC, for
CLEC's customers.
(e) Where ILEC provides Telephone Relay Service, ILEC shall
make such service available to CLEC at no additional charge,
for use by CLEC Customers who are speech or hearing-impaired.
(f) CLEC may purchase the entire set of Advance Intelligent
Network ("AIN") features or functions, or a subset or any one
or any combination of such features or functions, on a
customer-specific basis subject to protection of network
reliability and security.
34.3. Support Functions
(a) Routing to Directory Assistance, Operator and Repair
Services.
(b) Busy Line Verification and Emergency Line Interrupt.
(c) Access to the Line Information Database. -
(d) Telephone line number calling cards.
34.4. Service Functions
(a) ILEC shall provide an electronic interface for
transferring and receiving Service Orders and Provisioning
data and materials as outlined in the Attachments hereto on or
before January 1, 1997.
(b) Work order processes shall meet service parity
requirements.
(c) The point of contact for CLEC customers shall be CLEC.
(d) Each Party shall provide the other Party with a single
point of contact for all inquiries regarding the
implementation of this Part.
(e) CLEC's representative will have real-time access to ILEC
Customer information to enable the CLEC representative to
perform tasks outlined on Attachments 2, 5, 6, and 9.
(f) After receipt and acceptance of a Service Order, ILEC
shall provision such Service Order in accordance with the
Intervals and service quality standards referenced in
Attachment 11.
(g) Maintenance shall be provided in accordance with the
requirements and standards referenced in Attachments 6 and 11.
(h) ILEC shall provide the Customer Usage Data recorded by
ILEC in accordance with the requirements and standards set
forth in Attachment 8.
(i) In addition to testing described elsewhere in this Section
and Attachment 3, ILEC shall test the systems used to perform
the functions set forth in Attachment 2 at least sixty (60)
days prior to commencement of ILEC's provision of Local
Service, in order to establish system readiness capabilities.
(j) ILEC shall xxxx XXXX for Local Service provided by ILEC to
CLEC pursuant to the terms of this Part and Schedules 1 and 2.
ILEC shall recognize CLEC as the customer of record for all
Local Service and will send all notices, bills and other
pertinent information directly to CLEC.
PART III: UNBUNDLED NETWORK ELEMENTS
35. INTRODUCTION
35.1 This Part III sets forth the unbundled Network Elements that
ILEC agrees to offer to CLEC in accordance with its obligations under
Section 251(c)(3) of the Act. The specific terms and conditions that
apply to the unbundled Network Elements are described below and in the
Network Elements Service Description Attachment. The price for each
Network Element is set forth in Part IV of this Agreement.
36. UNBUNDLED NETWORK ELEMENTS
ILEC will offer Network Elements 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, the Oregon Statutes and Regulations and the requirements of
Section 251 and Section 252 of the Federal Act. Unbundling of subloop
Network Elements shall not be subject to the Bona Fide Request Process
set forth in Section 36.12 below because ILEC is specifically required
to provide unbundling of subloop Network Elements to CLEC by order of
the Commission.
ILEC will permit CLEC to interconnect CLEC's facilities or
facilities provided by CLEC or by third parties with each of ILEC's
unbundled Network Elements at any point designated by CLEC that is
technically feasible.
CLEC, at its option, may designate any technically feasible
network interface at a Served Premises, including without limitation,
XX-0, XX-0, XX-0, XXX-0, and OC-n (where n equals I to C) interfaces,
and any other interface described in the applicable technical
references.
CLEC may use one or more Network Elements to provide any
feature, function, or service option that such Network Element is
capable of providing or any feature, function, or service option that
is described in the technical references identified herein, or as may
otherwise be determined by CLEC.
ILEC shall offer each Network Element individually and in
combination with any other Network Element or Network Elements in order
to permit CLEC to combine such Network Element or Network Elements with
another Network Element or other Network Elements obtained from ILEC or
with network components provided by itself or by third parties to
provide telecommunications services to its customers.
For each Network Element, ILEC shall provide a demarcation
point (e.g., an interconnection point at a Digital Signal Cross Connect
or Light Guide Cross Connect panel or a Main Distribution Frame) and,
if necessary, access to such demarcation point, which CLEC agrees is
suitable. However, where ILEC provides contiguous Network Elements to
CLEC, ILEC may provide the existing
interconnections and no demar6ation point shall exist between such
`contiguous Network Elements.
ILEC shall not charge CLEC an interconnection fee or demand
other consideration for directly interconnecting any Network Element or
Combination to any other Network Element or Combination provided by
ILEC to CLEC if ILEC directly interconnects the same two Network
Elements or Combinations in providing any service to its own customers
or an ILEC Affiliate, including the use of intermediate devices, such
as a digital signal cross connect panel, to perform such
interconnection.
The total charge to CLEC to interconnect any Network Element
or Combination to any other Network Element or Combination provided by
ILEC to CLEC if ILEC does not directly interconnect the same two
Network Elements or Combinations in providing any service to its own
customers or an ILEC Affiliate (e.g., the interconnection required to
connect the Loop Feeder to an ILEC's collocated equipment), shall be
ILEC's total service long-run incremental cost of providing the
interconnection.
Subsections 1 through 11 below list the Network Elements that
CLEC and ILEC have identified as of the Effective Date of this
Agreement. CLEC and ILEC agree that the Network Elements identified in
this Part II are not exclusive.. Either Party may identify additional
or revised Network Elements as necessary to improve services to
customers, to improve network or service efficiencies or to accommodate
changing technologies, customer demand, or regulatory requirements.
Upon the identification of a new or revised Network Element, the Party
so identifying the new or revised Network Element shall notify the
other Party of the existence of and the technical characteristics of
the new or revised Network Element. If the Parties do not agree on the
existence of and the technical characteristics of the newly identified
or revised Network Element, any issues that have not been resolved by
the Parties within thirty days of notification shall be submitted to
the Dispute Resolution Procedures as set forth in this Agreement.
Within thirty (30) days of CLEC and ILEC agreeing on the technical
characteristics of the new or revised Network Element, the Parties will
attempt to agree on the rates, terms and conditions that would apply to
such Network Element and the effects, if any, on the price, performance
or other terms and conditions of existing Network Elements. If the
Parties do not agree on rates, terms and conditions and other matters
set forth herein, any issues that have not been resolved by the Parties
within thirty days shall be submitted to the Dispute Resolution
Procedures as set forth in this Agreement. Additionally, if ILEC
provides any Network Element that is not identified in this Agreement,
to itself, to ILEC's own customers, to an ILEC Affiliate or to any
other entity, ILEC will provide the same Network Element to CLEC on
rates, terms and conditions no less favorable to CLEC than those
provided to itself or to any other party. The Network Elements are
described below. Additional descriptions and requirements for each
Network Element are set forth in Attachment 3.
36.1 Loop Distribution
"Loop Distribution" is a Network Element that is composed of
two distinct component parts: a Network Interface Device and
Distribution Media.
36.2 Network Interface Device
The "Network Interface Device (NID)" is a single-line
termination device or that portion of a multiple-line termination
device required to terminate a single line or circuit. The fundamental
function of the NID is to establish the official network demarcation
point between a carrier and its end-user customer. The NID features two
independent xxxxxxxx or divisions which separate the service provider's
network from the customer's inside wiring. Each chamber or division
contains the appropriate connection points or posts to which the
service provider; and the end-user customer each make their
connections. The NID provides a protective ground connection, and is
capable of terminating cables such as twisted pair cable.
36.3 Distribution Media
"Distribution Media" provides connectivity between the NID
component of Loop Distribution and the terminal block on the
customer-side of a Feeder Distribution lnterface (FDI). The FDI is a
device that terminates the Distribution Media and the Loop Feeder, and
cross-connects them in order to provide a continuous transmission path
between the NID and a telephone company central office. For loop plant
that contains a Loop Concentrator/Multiplexer, the Distribution Media
may terminate at the FDI (if one exists), or at a termination and
cross-connect field associated with the Loop Concentrator/Multiplexer.
This termination and cross-connect field may be in the form of an
outside plant distribution closure, remote terminal or fiber node, or
an underground vault.
The Distribution Media may be copper twisted pair, coax cable,
or single or multi-mode fiber optic cable. A combination that includes
two or more of these media is also possible. In certain cases, CLEC may
require a copper twisted pair Distribution Media even in instances
where the Distribution Media for services that ILEC offers is other
than a copper facility. In such cases, CLEC must compensate ILEC for
all additional costs related to providing the copper facility.
36.4 Loop Concentrator/Multiplexer
The "Loop Concentrator/Multiplexer" is the Network Element
that: (a) aggregates lower bit rate or bandwidth signals to higher bit
rate or bandwidth signals (multiplexing); (b) disaggregates higher bit
rate or bandwidth signals to lower bit rate or bandwidth signals
(demultiplexing); (c) aggregates a specified number of signals or
channels to fewer channels (concentrating); (d) performs signal
conversion, including encoding of signals (e.g., analog to digital and
digital to analog signal conversion); and (e) in some instances
performs electrical to optical (E/O) conversion.
The Loop Concentrator/Multiplexer function may be provided
through a Digital Loop Carrier (DLC) system, channel bank, multiplexer
or other equipment at which traffic is encoded and decoded, multiplexed
and demultiplexed, or concentrated.
36.5 Loop Feeder
The "Loop Feeder" is the Network Element that provides
connectivity between (a) an FDI associated with Loop Distribution and a
termination point appropriate for the media in a central office, or (b)
a Loop Concentrator/Multiplexer provided in a remote terminal and a
termination point appropriate for the media in a central office. ILEC
shall provide CLEC physical access to the FDI, and the right to connect
the Loop Feeder to the FDI.
The physical medium of the Loop Feeder may be copper twisted
pair, or single or multi-mode fiber as designated by CLEC. In certain
cases, CLEC will require a copper twisted pair loop even in instances
where the medium of the Loop Feeder for services that ILEC offers is
other than a copper facility. In such cases, CLEC must compensate ILEC
for all additional costs related to providing the copper facility.
36.6 Local Switching
"Local Switching" is the Network Element that provides the
functionality required to connect the appropriate originating lines or
trunks wired to the Main Distributing Frame (MDF) or Digital Cross
Connect (DSX) panel to a desired terminating line or trunk. Such
functionality shall include all of the features functions, and
capabilities that the underlying ILEC switch that is providing such
Local Switching function is then capable of providing, including but
not limited to: line signaling and signaling software, digit reception,
dialed number translations call screening, routing, recording, call
supervision, dial tone, switching, telephone number provisioning,
announcements, calling features and capabilities (including call
processing), Gentrex, Automatic Call Distributor (ACD), Carrier
pre-subscription (e.g. long distance carrier, intraLATA toll), Carrier
Identification Code (GIG) portability capabilities, testing and other
operational features inherent to the switch and switch software. It
also provides access to transport, signaling (ISDN) User Part (ISUP)
and Transaction Capabilities Application Part (TCAP), and platforms
such as adjuncts, Public Safety Systems (911), operator services,
directory services and Advanced Intelligent Network (AIN). Remote
Switching Module functionality is included in the Local Switching
function. The switching capabilities used will be based on the line
side features they support. Local Switching will also be capable of
routing local, intraLATA, interLATA, and calls to international
customer's preferred carrier; call features (e.g., call forwarding) and
Centrex capabilities.
Local Switching also includes Data Switching, which provides:
For Asynchronous Transfer Mode (ATM) and Frame Relay Service,
data services switching functionality that is required to connect the
facilities from the User to Network Interface (UNI) to either another
UNI or to a communications path at the Network to Network Interface (NN
I). In this case, the purpose of Data Switching is to terminate,
concentrate, and switch data traffic from Customer Premises Equipment
(CPE) in the digital format consistent with the UNI specification for
the customer. Data Switching also provides connectivity for the purpose
of conveying the customer data to its final destination. The UNI and
NNI are industry standard interface specifications that contain
physical transmission layer requirements for speeds and line formats;
data link layer requirements for the format of the data units that are
passed between the user and the network; and protocol requirements for
control procedures used in managing the interface. Data Switching
provides this functionality in two distinct formats, ATM and Frame
Relay.
For ISDN Packet and Circuit Switched Data service, the data
switching functionality that is required to connect between industry
standard ISDN interfaces. In this case, the purpose of Data Switching
is to terminate, concentrate, and switch data traffic from Customer
Premises Equipment (CPE) in the digital format consistent with ISDN
standards. Data Switching also-provides connectivity for the purpose of
conveying the customer data to its final destination.
36.7 Operator Systems
"Operator Systems" is the Network Element that provides
operator and automated call handling and billing, special services,
customer telephone listings and optional call completion services. The
Operator Systems, Network Element provides two types of functions:
Operator Service functions and Directory Service functions, each of
which are described below.
Operator Service provides: (a) operator handling for call
completion (for example, collect, third number billing, and manual
credit card calls), (b) operator or automated assistance for billing
after the customer has dialed the called number (for example, credit
card calls); and (c) special services including but not limited to Busy
Line Verification and Emergency Interrupt (BLV/EI), Emergency Agency
Call, Operator-assisted Directory Assistance, and Rate Quotes.
Directory Service provides local customer telephone number
listings with the option to complete the call at the callers direction.
36.8 Transport
"Common Transport" is an interoffice transmission path between
ILEC Network Elements. Where ILEC Network Elements are connected by
intra-office wiring, such wiring is provided as a part of the Network
ELEMENTS AND IS NOT Common Transport.
"Dedicated Transport" is an interoffice transmission path
between CLEC designated locations. Such locations may include ILEC
central offices or other equipment locations, CLEC network components,
other carrier network components, or customer premises. Dedicated
Transport includes the Digital Cross-Connect System (DCS) functionality
as an option.
"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.
36.9 Signaling Transfer Points
"Signaling Transfer Points" is a signaling network function
that includes all of the capabilities provided by the signaling
transfer point switches (STPSs) and their associated signaling links
which enable the exchange of SS7 messages among and between switching
elements, database elements and signaling transfer points.
36.10 Tandem Switching
"Tandem Switching" is the function that establishes a
communications path between two switching offices through a third
switching office (the tandem switch).
36.11 Standards for Network Elements
Each Network Element shall be equal to or better than the
requirements set forth in the technical references, as well as any
performance or other requirements, identified herein. If another Xxxx
Communications Research, Inc. ("Bellcore"), or industry standard (e.g.,
American National Standards Institute ("ANSI") technical reference or a
more recent version of such reference sets forth a different
requirement, CLEC may elect, where technically feasible, which standard
shall apply.
Each Network Element and the interconnections between Network
Elements provided by ILEC to CLEC shall be at least equal in the
quality of design, performance, features, functions and other
characteristics, including but not limited to levels and types of
redundant equipment and facilities for power, diversity and security,
that ILEC provides in the ILEC network to itself, ILEC's own customers,
to an ILEC Affiliate or to any other entity.
ILEC shall provide to CLEC, upon reasonable request, such
engineering, design, performance and other network data sufficient for
CLEC to determine that the requirements of this Section 36 are being
met. In the event that such data indicates that the requirements of
this Section 36 are not being met, ILEC shall, within 10 days, cure any
design, performance or other deficiency and provide new data sufficient
for CLEC to determine that such deficiencies have been cured.
ILEC. agrees to work cooperatively with CLEC to provide
Network Elements that will meet CLEC's needs in providing services to
its customers.
Unless otherwise designated by CLEC, each Network Element and
the interconnections between Network Elements provided by ILEC to CLEC
shall be made available to CLEC on a priority basis that is equal to or
better than the priorities that ILEC provides to itself, ILEC's own
customers, to an ILEC Affiliate or to any other entity.
36.12 Bona Fide Request Process
36.12.1 Any request for interconnection or access to an
unbundled Network Element that is not already available via
price lists, tariff, or as described herein shall be treated
as a Request under this Section.
36.12.2 ILEC shall use the Bona Fide Request (BFR) Process to
determine the technical feasibility of the requested
interconnection of Network Element(s) and, for those items
found to be technically feasible, to provide the terms and
timetable for providing the requested items. Additionally,
elements, services, and functions which are materially or
substantially different from those services, elements or
functions already. provided by ILEC to itself, its Affiliates,
customers, or end users may, at the discretion of CLEC, be
subject to this BFR process.
36.12.3 A Request shall be submitted in writing and, at a
minimum, shall include: (a) a complete and accurate technical
description of each requested Network Element or
interconnection; (b) the desired interface specifications; (c)
a statement that the interconnection or Network Element will
be used to provide telecommunications service; (d) the
quantity requested; (e) the location(s) requested; and (f)
whether CLEC wants the requested item(s) and terms made
generally available.
36.12.4 Within forty-eight (48) hours of receipt of a Request,
ILEC shall acknowledge receipt of the Request and review such
request for initial compliance with 36.12.3 above and in its
acknowledgment advise CLEC of any missing information
reasonably necessary to move the Request to the preliminary
analysis described in 36.12.5 below.
36.12.5 Unless otherwise agreed to by the Parties, within
thirty (30) calendar days of its receipt of the Request and
all information necessary to process it, ILEC shall provide to
CLEC a preliminary analysis of the Request. During the thirty
(30) day period, ILEC agrees to provide weekly status updates
to CLEC. ILEC will notify CLEC if the quote preparation fee,
if any, will exceed $5,000. CLEC will approve the continuation
of the development of the quote prior to ILEC incurring any
reasonable additional expenses. The preliminary analysis shall
specify whether or not the requested interconnection or access
to an unbundled Network
Element is technically feasible and otherwise qualifies as a
Network Element or interconnection as defined under the Act.
36.12.5.1 If ILEC determines during the thirty (30)
day period that a Request is not technically feasible
or that the Request otherwise does not qualify as a
Network Element or interconnection that is required
to be provided under the Act, ILEC shall so advise
CLEC as soon as reasonably possible, and promptly
provide a written report setting forth the basis for
its conclusion in no case later than ten (10)
calendar days after making such determination.
36.12.5.2 If ILEC determines during the thirty (30)
day period that the Request is technically feasible
and otherwise qualifies under the Act, it shall
notify CLEC in writing of such determination in no
case later than ten (10) calendar days after making
such determination.
36.12.5.3 Unless otherwise agreed to by the Parties,
as soon as feasible, but no more than ninety (90)
calendar days after ILEC notifies CLEC that, the
Request is technically feasible, ILEC shall provide
to CLEC a Request quote which will include, at a
minimum, a description of each interconnection and
Network Element, the quantity to be provided, the
installation intervals (both initial and subsequent),
the impact on shared systems software interfaces,
ordering process changes, functionality
specifications, any interface specifications, and
either:
36.12.5.3.1 the applicable rates (recurring
and nonrecurring) including the amortized
development costs, as appropriate, of the
interconnection or the Network Element; or
36.12.5.3.2 the payment for development
costs, as appropriate, of the
interconnection or Network Element and the
applicable rates (recurring and
nonrecurring) excluding the development
costs.
36.12.5.4 The choice of using option 36.12.5.3.1 or
36.12.5.3.2 shall be at ILEC's sole discretion.
However, a payment for development cost is
appropriate only where CLEC is the only conceivable
user of the functionality (including consideration of
ILEC as a potential user) or where the requested
quantity is insufficient to provide amortization.
36.12.6 If ILEC has used option 36.12.5.3.1 in its Request
quote, then within thirty (30) days of its receipt of the
R6quest quote, CLEC. must indicate its non-binding interest in
purchasing the interconnection or Network Element at the
stated quantities and rates, cancel its Request, or seek
remedy under the Dispute Resolution section of this Agreement.
36.12.7 If ILEC has used option 36.12.5;3.2 in its Request
quote, then, within thirty (30) days of its receipt of the
Request quote CLEC must either agree to pay the development
costs of the interconnection of Network Element, cancel its
Request, or seek remedy under the Dispute Resolution section
of this Agreement.
36.12.8 If ILEC has used option 36.12.5.3.2 in its Request
quote and CLEC has accepted the quote, CLEC may cancel the
Request at any time, but will pay ILEC's reasonable
development costs of the interconnection or Network Element
up to the date of the cancellation.
36.12.9 ILEC will use reasonable efforts to determine the
technical feasibility and conformance with the Act of the
Request within the first thirty-two (32) days of receiving
the Request. In the event ILEC has used option 36.12.5.3.2 in
its Request quotes and ILEC later determines that the
interconnection or Network Element requested in the Request
is not technically feasible or otherwise does not qualify
under the Act, ILEC shall notify CLEC within ten (10)
business days of making such determination and CLEC shall not
owe any compensation to ILEC in connection with the Request.
Any quotation preparation fees or development costs paid by
CLEC to the time of that notification shall be refunded by
ILEC. -
36.12.10 To the extent possible, ILEC will utilize
information from previously developed BFRs to address similar
arrangements in order to shorten the response times for the
currently requested BFR. In the event CLEC has submitted a
Request for an interconnection or a Network Element and ILEC
determines in accordance with the provisions of this Section
36.12, that the Request is technically feasible, the Parties
agree that CLEC's subsequent request or order for the
identical type of interconnection or Network Element shall
not be subject to the BFR process.
36.12.11 In the event of a dispute under this Section 36.12,
the Parties agree to seek expedited Commission resolution of
the dispute, with a request to the Commission to be completed
within twenty (20) days of ILEC's response that declined
CLEC's BFR, and in no event more than thirty (30) days after
the filing of CLEC's petition.
PART IV: ANCILLARY FUNCTIONS
37. INTRODUCTION
This Part IV sets forth the Ancillary Functions that ILEC agrees to
offer to CLEC so that CLEC may obtain and use unbundled Network Elements or ILEC
services to provide services to its customers.
38. ILEC PROVISION OF ANCILLARY FUNCTIONS
ILEC will offer Ancillary Functions to CLEC on rates, terms and
conditions that are just, reasonable, and non-discriminatory and in accordance
with the terms and conditions of this Agreement.
ILEC will permit CLEC to interconnect CLEC's equipment and facilities
or equipment and facilities provided by CLEC or by third parties at any point
designated by CLEC that is technically feasible.
CLEC may use any Ancillary Function to provide any feature, function,
or service option that such Ancillary Function is capable of providing or any
feature, function, or service option that is described in the technical
references identified herein, or as may otherwise be designated by CLEC.
Subsections 38.1 through 38.3 below list the Ancillary Functions that
CLEC and ILEC have identified as of the Effective Date of this Agreement. CLEC
and ILEC agree that the Ancillary Functions identified in this Part IV are not
exclusive. Either Party may identify additional or revised Ancillary Functions
as necessary to improve services to customers, to improve network or service
efficiencies or to accommodate changing technologies, customer demand, or
regulatory requirements. Upon the identification of a new or revised Ancillary
Function, the Party so identifying the new or revised Ancillary Function shall
notify the other Party of the existence of and the technical characteristics of
the new or revised Ancillary Function. If the Parties do not agree on the
existence of and the technical characteristics of the newly identified or
revised Ancillary Function, any issues that have not been resolved by the
Parties within thirty days of notification shall be submitted to the Dispute
Resolution Procedures as set forth in Section 11 above. Within thirty (30) days
of CLEC and ILEC agreeing on the technical characteristics of the new or revised
Ancillary Function, the Parties will attempt to agree on the rates, terms and
conditions that would apply to such Ancillary Function and the effects, if any,
on the price, performance or other terms and conditions of existing Network
Elements or Ancillary Functions. If the parties do not agree on rates, terms,
and conditions and other matters set forth herein, any issues that have not been
resolved by the Parties within thirty (30) days shall be submitted to the
Dispute Resolution Procedures as set forth in this Agreement. Additionally, if
ILEC provides any Ancillary Function that is not identified in this Agreement to
itself, to its own customers, to an ILEC Affiliate or to any other entity, ILEC
will provide the same Ancillary Function to CLEC at rates, terms and conditions
no less favorable to CLEC than those provided by ILEC to itself or to any other
party. The Ancillary Functions are described below. Additional descriptions, and
requirements for each Ancillary Function are set forth in Attachment 4.
38.1 Collocation
"Collocation" is the right of CLEC to obtain dedicated space
in the ILEC Local Serving Office (LSO) or at other ILEC locations and
to place equipment in such spaces to interconnect with the ILEC
network. Collocation also includes ILEC providing resources necessary
for the operation and economical use of collocated equipment.
38.2 Right of Way (ROW), Conduits and Pole Attachments
"Right of Way (ROW)" is the right to use the land or other
property of another party to place poles, conduits, cables, other
structures and equipment, or to provide passage to access such
structures and equipment. A ROW may run under, on, or above public or
private property (including air space above public or private
property) and may include the right to use discrete space in
buildings, building complexes or other locations.
"Conduit" is a tube or protected trough that may be used to
house communication or electrical cables. Conduit may be underground
or above ground (for example, inside buildings) and may contain one or
more inner ducts..
"Pole Attachment" is the connection of a facility to a
utility pole. Some examples of facilities are mechanical hardware,
grounding and transmission cable, and equipment boxes.
38.3 Unused Transmission Media
"Unused Transmission Media" is physical inter-office
transmission media (e.g., optical fiber, copper twisted pairs, coaxial
cable) which has no lightwave or electronic transmission equipment
terminated to such media to operationalize its transmission
capabilities. This media may exist in aerial or underground structure
or within a building.
Dark Fiber, one type of unused transmission media, is unused
strands of optical fiber. Dark Fiber also includes strands of optical
fiber existing in aerial or underground structure which have Iightwave
repeater (regenerator or optical amplifier) equipment interspliced to
it at appropriate distances, but which has no line terminating
elements terminated to such strands to operationalize its transmission
capabilities. Alternately, Dark Fiber means unused wavelengths within
a fiber strand for purposes of coarse or dense wavelength division
multiplexed (WDM) applications. Typical single wavelength transmission
involves propagation of optical signals at single wavelengths (1.3 or
1.55 micron wavelengths). In WDM applications, a WDM device is used to
combine optical signals at different wavelengths on to a single fiber
strand. The combined signal is then transported over the fiber strand.
For coarse WDM applications, one signal each at 1.3 micron and 1.55
micron wavelength are combined. For dense WDM applications, many
signals in the vicinity of 1.3 micron wavelength or 1.55 micron
wavelength are combined. Spare wavelengths on a fiber strand (for
coarse or dense WDM) are considered Dark Fiber.
39. STANDARDS FOR ANCILLARY FUNCTIONS
Each Ancillary Function shall meet or exceed the requirements set forth
in the technical references, as well as the performance and other requirements,
identified herein. If another Xxxx Communications Research, Inc. ("Bellcore"),
or industry standard (e.g., American National Standards Institute ("ANSI"))
technical reference sets forth a
different requirement, CLEC may elect, where technically feasible, which
standard shall apply.
Each Ancillary Function provided by ILEC to CLEC shall be at least
equal in the quality of design, performance, features, functions and other
characteristics, including, but not limited to levels and types of redundant
equipment and facilities for diversity and security, that ILEC provides in the
ILEC network to itself, its own customers, its Affiliates or any other entity.
ILEC shall provide to CLEC, upon reasonable request, such engineering,
design, performance and other network data sufficient for CLEC to determine that
the requirements of this Agreement are being met. In the event that such data
indicates that the requirements of this Agreement are not being met, ILEC shall,
within 30 days,. cure any design, performance or other deficiency and provide
new data sufficient for' CLEC to determine that such deficiencies have been
cured.
ILEC agrees to work cooperatively with CLEC to provide Ancillary
Functions that will meet CLEC's needs in providing services to its customers.
Unless otherwise designated by CLEC, each Ancillary Function provided
by ILEC to CLEC shall be made available to CLEC on a priority basis that is at
least equal to the priorities that ILEC provides to itself, its customers, its
Affiliates or any other entity. -
PART V: PRICING
40. GENERAL PRINCIPLES
40.1 All services currently provided hereunder (including resold Local
Services), Network Elements and Combinations and all new and
additional services or Network Elements to be provided hereunder,
shall be priced in accordance with all applicable provisions of the
Act and the rules and orders of the Federal Communications Commission
and the Commission.
40.2 All services that ILEC provides at retail to subscribers who are
not telecommunications carriers shall be provided at wholesale rates.
Wholesale rates shall be determined on the basis of retail rates
charged to subscribers for the telecommunications service requested,
excluding the portion thereof attributable to any marketing, billing,
collection, and other costs that will be avoided by ILEC.
40.3 All such charges for Network Elements and Combinations shall be
nondiscriminatory.
40.4 All charges for Network Elements, Combinations, Interconnections
and Local Services shall, as a general matter, be based on ILEC's
Total Element Long Run Incremental Cost ("TELRlC") of providing such
element or service. When ILEC incurs additional costs in fulfilling a
CLEC request to build or modify a facility, and those costs are not
included in existing charges, ILEC may recover
its excess costs. ILEC may recover its economically efficient charges,
over and above those normally incurred in serving its own customers,
that result from CLEC's request to extend or expand CLEC's services.
In such a cases, ILEC bears the burden of showing that any claimed
additional costs are not already recovered through its existing
charges. ILEC shall not double recover charges. ILEC's recovery will
be limited to charges not already recovered in prices charged and will
be limited to the level of benefit that CLEC experiences as a result
of its request. If ILEC or any third party or parties also benefit
from the construction, ILEC's recovery from CLEC will be limited to a
percentage share of the total charges, based on a reasonable estimate
of CLEC's proportionate share of the benefit. Any nonrecurring costs
incurred by ILEC shall be recovered through recurring charges based on
cost.
41. PRICE SCHEDULES
41.1 Local Service Resale - Schedule 1
Retail services are subject to the greater of (a) the wholesale
discount set forth in Schedule 1 or (b) one half the discount in Schedule 1,
pIus any volume or term discount for which CLEC would be eligible if it were a
retail customer.
41.2 Unbundled Network Elements - Schedule 2
Charges for Network Elements will be based on the following: (a)
prices shall be those approved by the Commission in its Docket UM 351, Order No.
96-238. The UM351, Order No. 96-283 prices shall remain in effect until new
Unbundled Network Element prices are developed based on the revised cost
methodology approved in Docket UM-773, Order No. 96-284; and (b) where the
Commission has not yet developed prices for Unbundled Network Elements, the
applicable prices are those set forth in Schedule 2. Any price or contract
provision modified as a result of Commission reconsideration or appeal shall be
incorporated into this Agreement.
41.3 Other Pricing Matters
Within sixty (60) days after the Effective Date, the Parties shall
establish charges for the usage of Operations Support Systems (OSS). Such
charges shall be based on Total Element Long Run Incremental Costs. Such charges
shall appIy pending separate Commission action and shall be subject to true-up.
Interim Number Portability costs shall be recovered on a xxxx and keep
basis.
ILEC shall be entitled to recover legitimate and reasonable costs
incurred in complying with CLEC's requests for rebranding. ILEC shall have the
burden of proof in justifying any rebranding expenses it incurs on behalf of
CLEC.
Costs associated with the transport and termination of local and EAS
traffic shall be recovered on a xxxx and keep basis on an interim basis as
provided in Commission Order No. 96-021. CLEC may be required to share direct
transport costs under circumstances similar to those addressed by the Commission
in Order No. 96-160.
With respect to conditioning charges, ILEC may charge CLEC for
conditioning of local loops in accordance with prices and terms set forth by the
Commission in Order No. 96-283.
The wholesale discount applicable to services already subject to term
or volume discounts shall equal the greater of : (a) twenty-two percent (22%),
or (b) the sum of the term/volume discount plus eleven percent (11%).
CLEC's pricing proposal for electronic interfaces shall be implemented
on an interim basis until the Commission can develop prices based on the revised
cost methodology approved in UM-773, Order No. 96-284.
The charges for virtual collocation shall be those approved by the
Commission in Docket UT-i 19, Order No. 96-079.
Pole attachment fees charged by ILEC to CLEC shall in all respects be
consistent with the provisions of 47 U.S.C. Sections 703 et seq. and any FCC
rules promulgated pursuant thereto. Pending, enactment of said FCC rules, but
not thereafter, ILEC may continue to use the fee structure developed under the
0000 Xxxx Xxxxxxxxxx Xxx. Minimum purchase requirements shall not be imposed.
The cost of providing usable space shall be apportioned between and among all
entities according to the percentage of usable space required. Except to the
extent ILEC's fee structure, developed under the 1978 Pole Attachment Act, is
used hereunder, all applicable fees and charges shall be based on TELRIC.
To the extent modification costs for poles and/or conduit are
initiated by and incurred for the sole benefit of CLEC, CLEC shall assume the
cost of said modifications. To the extent modification costs are initiated by
and incurred for the benefit of multiple parties, including ILEC, participating
directly in said modification, including, without limitation, "piggybacking" by
various parties, said cost shall be apportioned between and among the
participating parties based upon the ratio of new space to be occupied by each.
To the extent any entities, including ILEC, subsequently obtain access to a
facility previously modified and paid for by CLEC and/or, other parties, ILEC
shall notify CLEC and/or the other parties, and provide the opportunity for
calculation and collection from the new parties of their proportionate share of
the modification costs, adjusted to reflect depreciation.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their respective duly authorized representatives.
AMERICAN TELEPHONE TECHNOLOGY, INC.* U S WEST COMMUNICATIONS, INC.*
/s/ F. Xxxxx Xxxxxx /s/ Xxxxxxxxx Xxxxxxx
-------------------------------- ------------------------------------
Signature Signed
F. Xxxxx Xxxxxx Xxxxxxxxx X. Fleminq
-------------------------------- ------------------------------------
Name Printed/Typed Name Printed/Typed
Vice President - Finance Executive Director - Lnterconnection
-------------------------------- ------------------------------------
Title Title
1-7-00 01/13/00
-------------------------------- ------------------------------------
Date Date
* This Agreement is made pursuant to Section 252 (i) of the Act and is
premised upon the Interconnection Agreement between AT&T Corp.. and U S WEST
Communications, Inc. (the "Underlying Agreement"). The Underlying Agreement was
approved by the Commission on September 5, 1997.
With respect to this Agreement, the Parties understand and agree:
i) The Parties shall request the Commission to expedite its review and approval
of this Agreement.
ii) Notwithstanding the mutual commitments set forth herein, the Parties are
entering into this Agreement without prejudice to any positions they have taken
previously, or may take in the future, in any legislative, regulatory, or other
public forum addressing any matters, including those relating to the types of
arrangements contained in this Agreement. During the proceeding in which the
Commission is to review and approve the Agreement, U S WEST may point out that
it has objected, and continues to object, to the inclusion of the terms and
conditions to which it objected in the proceedings involving the approval of the
Underlying Agreement.
iii) The Parties agree that traffic originated by either Party and delivered to
the other Party, which in turn delivers the traffic to an enhanced service
provider is not covered by this Agreement, since such traffic is interstate in
nature and this Agreement, including the reciprocal compensation provisions,
only apply to local traffic. American Telephone Technology, Inc. is responsible
for identifying enhanced service providers and associated usage.
iv) This Agreement contains provisions based upon the decisions and orders of
the FCC and the Commission under and with respect to the Act. Currently, court
and regulatory proceedings affecting the subject matter of this Agreement are in
various stages, including the proceedings where certain of the rules and
regulations of the FCC are being challenged In addition, there is uncertainty in
the aftermath of the Supreme Court's decision in AT&T CORP. ET AL. V. IOWA
UTILITIES BOARD. Based on that uncertainty, and the regulatory and judicial
proceedings which will occur as a result of that decision, the Parties
acknowledge that this Agreement may need to be changed to reflect any changes in
law. The Agreement has not been corrected to reflect the requirements, claims or
outcomes of any of the Proceedings,
although the pricing does reflect the Commission's most current generic
order, if any. Accordingly, when a final, decision or decisions are made in
the Proceedings that automatically change and modify the Underlying
Agreement, then like changes and modifications will similarly be made to this
Agreement. In addition, to the extent rules or laws are based on regulatory
or judicial proceedings as a result of the recent Supreme Court decision,
this Agreement will be amended to incorporate such changes.
v) Subsequent to the execution of this Agreement, the FCC or the Commission may
issue decisions or orders that change or modify the rules and regulations
governing implementing of the Act. lf such changes or modifications alter the
state of the law upon which the Underlying Agreement was negotiated and agreed,
and it reasonably appears that the parties to the Underlying Agreement would
have negotiated and agreed to different term(s) condition(s) or covenant(s) than
as contained in the Underlying Agreement had such change or modification been in
existence before execution of the Underlying Agreement, then this Agreement
shall be amended to reflect such different terms(s), condition(s), or
covenant(s). Where the parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision of this Agreement.