Common use of STAFF’S POSITION Clause in Contracts

STAFF’S POSITION. Section 21.1 of the Agreement’s General Terms and Conditions (“Intervening Law” provision) provides that Ameritech does not waive its legal rights, etc., vis-à-vis various court and FCC decisions. Staff states that the Intervening Law provision differs from Section 21.1 of the earlier version of the Ameritech standard negotiated agreement in that the earlier version contained the following additional sentence: The parties further acknowledge and agree that by executing this agreement, neither Party waives any of its rights, remedies or arguments with respect to such decisions or proceedings or any remands thereof, including its right to seek legal review or a stay pending appeal of such decisions and its rights under this Intervening Law paragraph. Staff is concerned that the absence of this sentence in the Agreement at issue here implies that Royal is waiving its rights relative to the court and FCC decisions because an express reservation of said rights was not included. During the course of discovery, Staff reports that Xxxxxxxxx refused to answer Staff’s Data Request related to this provision, although its argument implies that there is no such waiver. Staff fears that Ameritech might change its mind in the future and argue that the CLEC is waiving its legal rights vis-à-vis intervening law changes. Because the boilerplate contract language is likely – indeed, virtually certain – to repeatedly appear in future negotiated agreements, Staff insists that the issue of waiver under Section 21.1 should be formally and officially resolved in this proceeding. Staff contends that the public interest is not served if, subsequently, a dispute arises concerning the CLEC’s waiver of rights under this standard provision of Ameritech’s negotiated agreements. Likewise, Staff continues, the public interest is not served if the Commission and its Staff have to inquire into this issue in every Ameritech negotiated agreement wherein the language appears. Staff recommends that the Commission rule that the absence of the mention of the reservation of legal rights of the CLEC under Section 21.1 of this Agreement does not constitute waiver of rights by the CLEC.

STAFF’S POSITION. Section 21.1 of the Agreement’s General Terms and Conditions (“Intervening Law” provision) provides that Ameritech does not waive its legal rights, etc., vis-à-vis various court and FCC decisions. Staff states that the Intervening Law provision differs from Section 21.1 of the earlier version of the Ameritech standard negotiated agreement in that the earlier version contained the following additional sentence: The parties further acknowledge and agree that by executing this agreement, neither Party waives any of its rights, remedies or arguments with respect to such decisions or proceedings or any remands thereof, including its right to seek legal review or a stay pending appeal of such decisions and its rights under this Intervening Law paragraph. Staff is concerned that the absence of this sentence in the Agreement at issue here implies that Royal Easton is waiving its rights relative to the court and FCC decisions because an express reservation of said rights was not included. During the course of discovery, Staff reports that Xxxxxxxxx refused to answer Staff’s Data Request related to this provision, although its argument implies that there is no such waiver. Staff fears that Ameritech might change its mind in the future and argue that the CLEC is waiving its legal rights vis-à-vis intervening law changes. Because the boilerplate contract language is likely – indeed, virtually certain – to repeatedly appear in future negotiated agreements, Staff insists that the issue of waiver under Section 21.1 should be formally and officially resolved in this proceeding. Staff contends that the public interest is not served if, subsequently, a dispute arises concerning the CLEC’s waiver of rights under this standard provision of Ameritech’s negotiated agreements. Likewise, Staff continues, the public interest is not served if the Commission and its Staff have to inquire into this issue in every Ameritech negotiated agreement wherein the language appears. Staff recommends that the Commission rule that the absence of the mention of the reservation of legal rights of the CLEC under Section 21.1 of this Agreement does not constitute waiver of rights by the CLEC.

STAFF’S POSITION. Staff has reviewed the very same Amendment, between SBC and other carriers, in dockets 03-0451, 03-0453 and several other dockets, based on the standards set forth in Section 21.1 252(e)(2) of the Agreement’s General Terms Act. Under this Section, the Commission may only reject an agreement, or any portion thereof, adopted by negotiation under this subsection if it finds that: (i) the agreement, or any portion thereof, discriminates against a telecommunications carrier that is not a party to the agreement; or (ii) the implementation of such agreement, or a portion thereof, is not consistent with the public interest, convenience and Conditions (“Intervening Law” provision) provides necessity. In the Verified Statements in 03-0451 and 03-0453, Staff has concluded that, since similarly-situated carriers can enter into essentially the same contract, the Amendment to the Agreement should not be deemed to be discriminatory. Also in those dockets, Staff has concluded that Ameritech the Amendment does not waive its legal rightsdiscriminate against a telecommunications carrier that is not a party to the Agreement and that the implementation of the Amendment would not be inconsistent with the public interest, etc., vis-à-vis various court and FCC decisionsconvenience or necessity. Staff states has represented that the Intervening Law provision differs Amendment in this docket is uniform in nature, and that the Amendment here is identical in substance to the previously mentioned dockets. Staff also represent that it cannot conceive of a situation in which its recommendation for approval would change. There are no contested issue in this docket. Moreover, no party has contended that the Amendment is discriminatory or contrary to the public interest. In the Verified Statements in 03-0451 and 03-0453, Staff recommended that the Commission require SBC to file, within five (5) days from Section 21.1 the date upon which the Agreement is approved, with the Office of the earlier version of the Ameritech standard negotiated agreement in Chief Clerk, a verified statement that the earlier version contained approved Amendment to the following additional sentence: The parties further acknowledge and agree that by executing Agreement is the same as the Amendment filed in this agreement, neither Party waives any of its rights, remedies or arguments Docket with respect to such decisions or proceedings or any remands thereof, including its right to seek legal review or a stay pending appeal of such decisions and its rights under this Intervening Law paragraphthe Verified Petition. Staff is concerned also recommended that the absence of this sentence in Chief Clerk place the Agreement at issue here implies that Royal is waiving its rights relative to Amendment on the court Commission's web site under "Interconnection Agreements." These recommendations are reasonable and FCC decisions because an express reservation of said rights was not included. During the course of discovery, Staff reports that Xxxxxxxxx refused to answer Staff’s Data Request related to this provision, although its argument implies that there is no such waiver. Staff fears that Ameritech might change its mind in the future and argue that the CLEC is waiving its legal rights vis-à-vis intervening law changes. Because the boilerplate contract language is likely – indeed, virtually certain – to repeatedly appear in future negotiated agreements, Staff insists that the issue of waiver under Section 21.1 they should be formally and officially resolved adopted in this proceeding. Staff contends that the public interest is not served if, subsequently, a dispute arises concerning the CLEC’s waiver of rights under this standard provision of Ameritech’s negotiated agreements. Likewise, Staff continues, the public interest is not served if the Commission and its Staff have to inquire into this issue in every Ameritech negotiated agreement wherein the language appears. Staff recommends that the Commission rule that the absence of the mention of the reservation of legal rights of the CLEC under Section 21.1 of this Agreement does not constitute waiver of rights by the CLEC.

STAFF’S POSITION. Staff has reviewed the Amendment to the Agreement based on the standards set forth in Section 21.1 252(e)(2) of the Agreement’s General Terms Act. Under this Section, the Commission may only reject an agreement, or any portion thereof, adopted by negotiation under subsection (a) if it finds that (i) the agreement, or any portion thereof, discriminates against a telecommunications carrier not a party to the agreement; or (ii) the implementation of such agreement, or a portion thereof, is not consistent with the public interest, convenience and Conditions necessity. Staff recommended that the Amendment to the Agreement should be approved by the Commission, for the reasons set forth in the Verified Statement of Xxx Xxx. Xx. Xxx stated that the Amendment to the Agreement meets the standards set forth in the Act and is consistent with the public interest. Staff noted that all of the services in the Amendment are priced at or above their respective Long Run Service Incremental Costs (“Intervening Law” provision) provides LRSICs”). Staff concluded that Ameritech the Amendment to the Agreement does not waive its legal rights, etc., vis-à-vis various court discriminate against a telecommunications carrier that is not a party to the Agreement and FCC decisions. Staff states that the Intervening Law provision differs from Section 21.1 implementation of the earlier version of Amendment would not be inconsistent with the Ameritech standard negotiated agreement public interest, convenience or necessity. There are no contested issues in this docket. No party contended that the earlier version contained the following additional sentence: The parties further acknowledge and agree that by executing this agreement, neither Party waives any of its rights, remedies or arguments with respect Amendment to such decisions or proceedings or any remands thereof, including its right to seek legal review or a stay pending appeal of such decisions and its rights under this Intervening Law paragraph. Staff is concerned that the absence of this sentence in the Agreement at issue here implies that Royal is waiving its rights relative discriminatory or contrary to the court and FCC decisions because an express reservation of said rights was not includedpublic interest. During the course of discoveryIn addition, Staff reports that Xxxxxxxxx refused to answer Staff’s Data Request related to this provision, although its argument implies that there is no such waiver. Staff fears that Ameritech might change its mind in the future and argue that the CLEC is waiving its legal rights vis-à-vis intervening law changes. Because the boilerplate contract language is likely – indeed, virtually certain – to repeatedly appear in future negotiated agreements, Staff insists that the issue of waiver under Section 21.1 should be formally and officially resolved in this proceeding. Staff contends that the public interest is not served if, subsequently, a dispute arises concerning the CLEC’s waiver of rights under this standard provision of Ameritech’s negotiated agreements. Likewise, Staff continues, the public interest is not served if the Commission and its Staff have to inquire into this issue in every Ameritech negotiated agreement wherein the language appears. Staff recommends that the Commission rule require Ameritech to file, within five (5) days from the date upon which the Amendment to the Agreement is approved, with the Office of the Chief Clerk, a verified statement that the absence of approved Amendment to the mention of agreement is the reservation of legal rights of same as the CLEC Amendment to the Agreement filed in this Docket with the Verified Petition. Staff also recommends that the Chief Clerk place the Amendment on the Commission's web site under Section 21.1 of this Agreement does not constitute waiver of rights by the CLEC"Interconnection Agreements." Staff's recommendations are reasonable and they should be adopted.

STAFF’S POSITION. Staff has reviewed the Amendment based on the standards set forth in Section 21.1 252(e)(2) of the Agreement’s General Terms Act. Under this Section, the Commission may only reject an agreement, or any portion thereof, adopted by negotiation under subsection: if it finds that (i) the agreement, or any portion thereof, discriminates against a telecommunications carrier not a party to the agreement; or (ii) the implementation of such agreement, or a portion thereof, is not consistent with the public interest, convenience and Conditions (“Intervening Law” provision) provides that Ameritech does not waive its legal rights, etc., vis-à-vis various court and FCC decisionsnecessity. Staff states that the Intervening Law provision differs from Section 21.1 of the earlier version of the Ameritech standard negotiated agreement in that the earlier version contained the following additional sentence: The parties further acknowledge and agree that by executing this agreement, neither Party waives any of its rights, remedies or arguments with respect to such decisions or proceedings or any remands thereof, including its right to seek legal review or a stay pending appeal of such decisions and its rights under this Intervening Law paragraph. Staff is concerned that the absence of this sentence in the Agreement at issue here implies that Royal is waiving its rights relative to the court and FCC decisions because an express reservation of said rights was not included. During the course of discovery, Staff reports that Xxxxxxxxx refused to answer Staff’s Data Request related to this provision, although its argument implies that there is no such waiver. Staff fears that Ameritech might change its mind in the future and argue that the CLEC is waiving its legal rights vis-à-vis intervening law changes. Because the boilerplate contract language is likely – indeed, virtually certain – to repeatedly appear in future negotiated agreements, Staff insists that the issue of waiver under Section 21.1 should be formally and officially resolved in this proceeding. Staff contends that the public interest is not served if, subsequently, a dispute arises concerning the CLEC’s waiver of rights under this standard provision of Ameritech’s negotiated agreements. Likewise, Staff continues, the public interest is not served if the Commission and its Staff have to inquire into this issue in every Ameritech negotiated agreement wherein the language appears. Staff recommends recommended that the Commission rule approve the Amendment, for the reasons set forth in the Verified Statement of Xx. Xxxxxxx. Xx. Xxxxxxx averred that it meets the standards set forth in the Act and that it is consistent with the public interest. Staff concluded that, since similarly-situated carriers can enter into essentially the same contract, it should not be deemed to be discriminatory. Staff concluded that the absence Amendment does not discriminate against a telecommunications carrier that is not a party to the Agreement and that the implementation of the mention Amendment would not be inconsistent with the public interest, convenience or necessity. No party contended that the Amendment is discriminatory or contrary to the public interest. Staff also recommended that the Commission require Verizon to modify its tariffs to reference the Amendment for each service affected. Also, the Chief Clerk should place the Amendment on the Commission's web site under "Interconnection Agreements." Staff's recommendations are reasonable and they should be adopted. Staff further notes, for the sake of accuracy, that the reservation correct name of legal rights of Madison River’s d/b/a is not on the CLEC under Section 21.1 of Petition or on the Amendment. At the hearing, Staff requested that the Administrative Law Judge include in this Agreement does not constitute waiver of rights by Order the CLECfact that the correct d/b/a for Madison River Communications LLC is Gallatin River Integrated Communications Solutions. This request is reasonable and it was granted.