Ameritech’s Position. Ameritech objects to Staff’s claim that Xxxxxx could not have agreed on the amount of liquidated damages because it did not review the payment provisions. Ameritech points out that in the aforementioned Xxx decision, the state commission imposed liquidated damages provisions in an arbitration, and the federal court affirmed. Xxxxxxxxx states that the carrier on which the liquidated damages were imposed had not agreed that the amounts were a reasonable approximation of the damages that would result from a breach. Under Staff’s logic then, Xxxxxxxxx asks how the state commission could have imposed liquidated damages. The answer, according to Ameritech, is that a liquidated damages amount is no more and no less “agreed” than any other contract provision. In a “typical contract,” Ameritech contends that the liquidated damages amount is agreed, like the other provisions in the contract; in an arbitrated agreement, the amount can be imposed – just like all sorts of other provisions that would normally be agreed. Similarly here, Xxxxxxxxx maintains that Xxxxxx “agreed” to the liquidated damages amount no more and no less than they “agreed” to any other provisions in the Agreement. If Staff’s view of “agreement” were correct, Ameritech claims that the Commission would from now on have to reject all negotiated agreements except those that the parties aver they reviewed line by line. In response to Staff’s argument that payments under the 11-State Plan can not be liquidated damages because the amounts may be affected by the monthly cap, and so are not “fixed,” Ameritech states that unless and until the cap in the 11-State Plan is ever reached, that argument is moot. If the 11-State Plan’s cap is ever reached, Ameritech contends that any affected CLEC that wants to can make the claim that Staff is asserting and obtain a determination whether it is entitled to additional damages. Ameritech maintains that nothing prohibits parties from agreeing on liquidated damages and also agreeing that the payment of liquidated damages will be capped. Nor, Ameritech continues, has Staff shown that the lower monthly cap under the 11-State Plan will have any effect. Ameritech asserts that the cap in the 11-State Plan covers only amounts due carriers operating under the 11-State Plan and claims that it will not deprive any carrier of remedy payments. As for why the cap in the 11-State Plan is lower than that in the Illinois Remedy Plan, Ameritech states that the 11-State Plan covers fe...
Ameritech’s Position. In response to Staff’s complaint about the lack of an annual audit of performance results under the 11-State Plan, Ameritech states that the Remedy Plan Order already establishes an annual audit of performance results. That audit, Xxxxxxxxx explains, will encompass the same systems and process used to produce performance results under both the Illinois Remedy Plan and the 11-State Plan. To the extent a CLEC participating in the 11-State Plan wants additional assurance or has specific concerns, Ameritech asserts that the 11-State Plan allows the CLEC to request a targeted “mini- audit.”
Ameritech’s Position. With regard to Tier 2 payments, Xxxxxxxxx explains that it makes Tier 2 payments pursuant to the Commission’s Remedy Plan Order and the Illinois Remedy Plan. Ameritech states that those payments, as defined in the Illinois Remedy Plan, are based on its performance for all CLECs in Illinois, regardless of which remedy plan a CLEC is operating under or whether a CLEC is even operating under a remedy plan. Therefore, Ameritech states that its wholesale performance for Royal will be included in the calculation of Ameritech’s Tier 2 payment amounts. Ameritech maintains that there is no reason for the Agreement to say anything about Tier 2. The fact that Ameritech’s performance for Royal is included in the Tier 2 calculation may be of casual interest to the CLEC, but, Ameritech points out, it has nothing to do with Royal’s Agreement with Ameritech because it is not a contractual undertaking that Ameritech is making to Royal. Notwithstanding Staff’s confusion, Xxxxxxxxx argues that the language is clear and that to include a reference to Tier 2 payments may only confuse matters for CLECs considering the 11-State Plan.
Section 2.1 provides in part that the payments under this plan “shall be the sole and exclusive remedy of CLEC” and shall be in lieu of any other damages CLEC might otherwise seek. Ameritech sees no inconsistency between that and the fact that Ameritech’s Tier 2 payments to the State will take its performance for Royal into account because Ameritech’s Tier 2 payments are not remedies of Royal.
Ameritech’s Position. Ameritech attempts to justify the three-month exemption by arguing that Staff’s interpretation is simply not reasonable. Ameritech understands Staff to be saying that the 11-State Plan establishes a three-month waiver for each interconnection agreement, an interpretation that is incorrect and makes a considerable difference, according to Ameritech. To demonstrate its position, Xxxxxxxxx states that if a CLEC like WorldCom, which has been doing business in Illinois for much more than three months, and which is now under the Illinois Remedy Plan, were to adopt the 11-State Plan, Sections 6.3 and 12.1 would have no effect at all unless and until WorldCom ordered a new service 4 The Commission recognizes that the “looser pays” condition applies to mini-audits under the Illinois Remedy Plan, but also notes that the mini-audits are not the only audits available. or unbundled network element, or until a new measure is introduced. The same is true, Ameritech adds, for AT&T, TCG, and all the other major CLECs that are now doing business in Illinois. Ameritech points out that Royal shares this understanding. From this, Xxxxxxxxx concludes that if the 11-State Plan were ever to become the dominant plan in Illinois, which seems to be an important underlying concern of Staff, Sections 6.3 and 12.1 would have very little impact. Furthermore, Ameritech contends that Sections 6.3 and 12.1 are reasonable and consistent with industry practice. Xxxxxxxxx states that the three-month period gives it and the CLEC time to fully implement and fine-tune their processes with respect to a new product or service. Ameritech considers it perfectly sensible to defer remedies during this “start-up” period and notes that during the industry collaboratives that the parties commonly agreed that new measurements or product categories are “diagnostic” and, thus, not subject to remedies for the first few months. Ameritech also adds that to the extent that the start-up period excludes remedies for a particular CLEC (as opposed to a new measure, product, or service), remedies would still apply for other CLECs, and the “new” CLEC would receive service through the same systems and processes.
Ameritech’s Position. In response to Staff’s position, Ameritech notes that some provisions in the Agreement reflect decisions by the Commission or the FCC that are still subject to appeal. In recognition of that fact, the Intervening Law provision provides for amendment of the Agreements if any of those decisions are reversed or otherwise changed. According to Ameritech, the language addressed by Staff states that Ameritech’s entry into the Agreement is not a waiver of any of its legal rights, particularly including its right to “seek legal review or a stay pending appeal” of such decisions, and specifies that one of the rights Ameritech is not waiving is its right to adopt the FCC internet service provider (“ISP”) terminating compensation plan. Ameritech urges the Commission to reject Staff’s recommendation that the Commission interpret the Intervening Law provision. Ameritech asserts that there is a perfectly good reason that there is no non-waiver language for Easton: While Ameritech is a party to many of the Commission and FCC proceedings that resulted in the decisions that Ameritech is preserving its right to challenge, Easton was not, and so has no appeal rights to preserve. Similarly, Xxxxxxxxx explains that it has the right to adopt the FCC ISP terminating compensation plan, while Xxxxxx does not. Ameritech contends that there is no need for a statement that Xxxxxx is not waiving rights that it does not have. If a question ever did arise concerning whether Easton waived rights that Section
21.1 preserved for Ameritech, Ameritech asserts that the question could only be answered by a detailed inquiry into what it was that Xxxxxx did that allegedly constituted such a waiver. Certainly, Ameritech continues, the mere fact that the Intervening Law provision does not refer to the CLEC can not, standing alone, constitute a waiver – there would have to be a claim that it had done something, or said something (or failed to do or say something) that constituted the waiver.
