Common use of Unbundled Network Elements and Combinations Clause in Contracts

Unbundled Network Elements and Combinations. On January 25, 1999, the United States Supreme Court vacated 47 C.F.R. 51.319 (“FCC Rule 319”) which was in effect at the time the Commission conducted the arbitration proceeding and issued its Orders pursuant to which this Agreement was produced (the “Commission’s Orders”). GTE believes that as a result of the Court’s decision it is not legally obligated to unbundle the network elements identified by the Commission’s Orders. The Parties anticipate, however, that the FCC will issue new final rules regarding unbundling of network elements (the “New Rules”). The Court also ruled that 47 C.F.R. 315(b), concerning combinations of currently-combined network elements is lawful. AT&T believes that pursuant to the Court’s decision and other Applicable Law AT&T is legally entitled to obtain Combinations from GTE. Notwithstanding GTE’s understanding of its current legal obligations, and without waiving any of its rights including, but not limited to, its rights to seek recovery of its actual costs and a sufficient explicit universal service fund, and its right to assert that under the Court’s decision it is not required to provide unbundled network elements unconditionally, GTE will provide to AT&T, subject to the terms and conditions set forth herein, the individual unbundled network elements common to FCC Rule 319 and Section 32.9 of this Agreement until the FCC issues the New Rules. Notwithstanding AT&T’s understanding of its current legal right to obtain Unused Transmission Media and Combinations from GTE, AT&T, without waiver of any of its rights concerning Combinations and Unused Transmission Media including, but not limited to, the right to obtain such Combinations, agrees not to seek or require GTE to provide Unused Transmission Media or Combinations in the State until the FCC issues the New Rules, and sections contained in this Agreement that are identified as containing issues with regard to Unused Transmission Media and Combinations shall be of no force and effect to the extent they require or raise issues with regard to provision of Unused Transmission Media and Combinations. Subject to the terms and conditions of this Section 1.1, neither Party desires to delay either approval or implementation of the terms and conditions of this Agreement in the normal course under the Act, other than those related to Unused Transmission Media and the Combination issue. Neither Party desires to relinquish its rights as they pertain to unbundled network elements or the Combinations; and neither party does relinquish its rights by virtue of these provisions. The Parties therefore agree that the provisions of this Agreement related to Unused Transmission Media and Combinations are identified and are intended to be left unresolved until after the FCC issues its New Rules. The Parties intend that when this Agreement is submitted to the Commission for review in the normal course under § 252(e)(6) of the Act with language related to Unused Transmission Media and the Combination issue unresolved, that such disputed language shall remain disputed and shall not be resolved by the Commission, and that if the Commission approves the Agreement the disputed language related to Unused Transmission Media or to the Combination issue is to be left unresolved and shall not be applied or used by the Parties. The Parties will jointly submit the Agreement for review under the Act notwithstanding the absence of provisions resolving Unused Transmission Media and the Combination issue, and the Parties will request that the Commission in reviewing the Agreement do so without reviewing or addressing the language related to Unused Transmission Media and the Combination issue. Neither Party shall claim that the Agreement so submitted may not be approved by the Commission under Section 252, or be reviewed in federal district court pursuant to Section 252(e)(6), based on the absence of provisions resolving Unused Transmission Media and the Combination issue, or the possibility that the Agreement may subsequently be amended by the addition of such provisions or deletion of sections identifying unbundled network elements, if applicable. If, during its review of the Agreement submitted in accordance with the foregoing, the Commission, notwithstanding the Parties’ requests to the contrary, resolves all or any part of provisions related to Unused Transmission Media or unbundled network element Combinations, the Agreement shall be revised to reflect such resolution, and the revised agreement shall be submitted to the Commission for review pursuant to Section 252. The Commission’s approval or rejection of the revised agreement shall then be subject to review pursuant to Section 252(e)(6). Notwithstanding such Commission action, the language related to Unused Transmission Media or to the Combination issue shall not be applied or used until after the FCC issues its New Rules. When the FCC issues its New Rules the Agreement shall be amended to reflect the rules then applicable to unbundled network elements and Combinations, and the amended agreement shall be submitted to the Commission for review pursuant to Section 252. The Commission’s approval or rejection of the amended agreement may then be subject to review.

Unbundled Network Elements and Combinations. On January 25, 1999, the United States Supreme Court vacated 47 C.F.R. 51.319 (“FCC Rule 319”) which was in effect at the time the Commission conducted the arbitration proceeding and issued its Orders pursuant to which this Agreement was produced (the “Commission’s Orders”). GTE XXX believes that as a result of the Court’s decision it is not legally obligated to unbundle the network elements identified by the Commission’s Orders. The Parties anticipate, however, that the FCC will issue new final rules regarding unbundling of network elements (the “New Rules”). The Court also ruled that 47 C.F.R. 315(b), concerning combinations of currently-combined network elements is lawful. AT&T believes that pursuant to the Court’s decision and other Applicable Law AT&T is legally entitled to obtain Combinations from GTE. Notwithstanding GTE’s understanding of its current legal obligations, and without waiving any of its rights including, but not limited to, its rights to seek recovery of its actual costs and a sufficient explicit universal service fund, and its right to assert that under the Court’s decision it is not required to provide unbundled network elements unconditionally, GTE will provide to AT&T, subject to the terms and conditions set forth herein, the individual unbundled network elements common to FCC Rule 319 and Section 32.9 of this Agreement until the FCC issues the New Rules. Notwithstanding AT&T’s understanding of its current legal right to obtain Unused Transmission Media and Combinations from GTE, AT&T, without waiver of any of its rights concerning Combinations and Unused Transmission Media including, but not limited to, the right to obtain such Combinations, agrees not to seek or require GTE to provide Unused Transmission Media or Combinations in the State until the FCC issues the New Rules, and sections contained in this Agreement that are identified as containing issues with regard to Unused Transmission Media and Combinations shall be of no force and effect to the extent they require or raise issues with regard to provision of Unused Transmission Media and Combinations. Subject to the terms and conditions of this Section 1.1, neither Party desires to delay either approval or implementation of the terms and conditions of this Agreement in the normal course under the Act, other than those related to Unused Transmission Media and the Combination issue. Neither Party desires to relinquish its rights as they pertain to unbundled network elements or the Combinations; and neither party does relinquish its rights by virtue of these provisions. The Parties therefore agree that the provisions of this Agreement related to Unused Transmission Media and Combinations are identified and are intended to be left unresolved until after the FCC issues its New Rules. The Parties intend that when this Agreement is submitted to the Commission for review in the normal course under § 252(e)(6) of the Act with language related to Unused Transmission Media and the Combination issue unresolved, that such disputed language shall remain disputed and shall not be resolved by the Commission, and that if the Commission approves the Agreement the disputed language related to Unused Transmission Media or to the Combination issue is to be left unresolved and shall not be applied or used by the Parties. The Parties will jointly submit the Agreement for review under the Act notwithstanding the absence of provisions resolving Unused Transmission Media and the Combination issue, and the Parties will request that the Commission in reviewing the Agreement do so without reviewing or addressing the language related to Unused Transmission Media and the Combination issue. Neither Party shall claim that the Agreement so submitted may not be approved by the Commission under Section 252, or be reviewed in federal district court pursuant to Section 252(e)(6), based on the absence of provisions resolving Unused Transmission Media and the Combination issue, or the possibility that the Agreement may subsequently be amended by the addition of such provisions or deletion of sections identifying unbundled network elements, if applicable. If, during its review of the Agreement submitted in accordance with the foregoing, the Commission, notwithstanding the Parties’ requests to the contrary, resolves all or any part of provisions related to Unused Transmission Media or unbundled network element Combinations, the Agreement shall be revised to reflect such resolution, and the revised agreement shall be submitted to the Commission for review pursuant to Section 252. The Commission’s approval or rejection of the revised agreement shall then be subject to review pursuant to Section 252(e)(6). Notwithstanding such Commission action, the language related to Unused Transmission Media or to the Combination issue shall not be applied or used until after the FCC issues its New Rules. When the FCC issues its New Rules the Agreement shall be amended to reflect the rules then applicable to unbundled network elements and Combinations, and the amended agreement shall be submitted to the Commission for review pursuant to Section 252. The Commission’s approval or rejection of the amended agreement may then be subject to review.

Unbundled Network Elements and Combinations. On January 25, 1999, the United States Supreme Court vacated 47 C.F.R. 51.319 (“FCC Rule 319”) which was in effect at the time the Commission conducted the arbitration proceeding and issued its Orders pursuant to which this Agreement was produced (the “Commission’s Orders”). GTE XXX believes that as a result of the Court’s decision it is not legally obligated to unbundle the network elements identified by the Commission’s Orders. The Parties anticipate, however, that the FCC will issue new final rules regarding unbundling of network elements (the “New Rules”). The Court also ruled that 47 C.F.R. 315(b), concerning combinations of currently-combined network elements is lawful. AT&T believes that pursuant to the Court’s decision and other Applicable Law AT&T is legally entitled to obtain Combinations from GTE. Notwithstanding GTE’s understanding of its current legal obligations, and without waiving any of its rights including, but not limited to, its rights to seek recovery of its actual costs and a sufficient explicit universal service fund, and its right to assert that under the Court’s decision it is not required to provide unbundled network elements unconditionally, GTE will provide to AT&T, subject to the terms and conditions set forth herein, the individual unbundled network elements common to FCC Rule 319 and Section 32.9 of this Agreement until the FCC issues the New Rules. Notwithstanding AT&T’s understanding of its current legal right to obtain Unused Transmission Media and Combinations from GTE, AT&T, without waiver of any of its rights concerning Combinations and Unused Transmission Media including, but not limited to, the right to obtain such Combinations, agrees not to seek or require GTE to provide Unused Transmission Media or Combinations in the State until the FCC issues the New Rules, and sections contained in this Agreement that are identified as containing issues with regard to Unused Transmission Media and Combinations shall be of no force and effect to the extent they require or raise issues with regard to provision of Unused Transmission Media and Combinations. Subject to the terms and conditions of this Section 1.1, neither Party desires to delay either approval or implementation of the terms and conditions of this Agreement in the normal course under the Act, other than those related to Unused Transmission Media and the Combination issue. Neither Party desires to relinquish its rights as they pertain to unbundled network elements or the Combinations; and neither party does relinquish its rights by virtue of these provisions. The Parties therefore agree that the provisions of this Agreement related to Unused Transmission Media and Combinations are identified and are intended to be left unresolved until after the FCC issues its New Rules. The Parties intend that when this Agreement is submitted to the Commission for review in the normal course under § 252(e)(6) of the Act with language related to Unused Transmission Media and the Combination issue unresolved, that such disputed language shall remain disputed and shall not be resolved by the Commission, and that if the Commission approves the Agreement the disputed language related to Unused Transmission Media or to the Combination issue is to be left unresolved and shall not be applied or used by the Parties. The Parties will jointly submit the Agreement for review under the Act notwithstanding the absence of provisions resolving Unused Transmission Media and the Combination issue, and the Parties will request that the Commission in reviewing the Agreement do so without reviewing or addressing the language related to Unused Transmission Media and the Combination issue. Neither Party shall claim that the Agreement so submitted may not be approved by the Commission under Section 252, or be reviewed in federal district court pursuant to Section 252(e)(6), based on the absence of provisions resolving Unused Transmission Media and the Combination issue, or the possibility that the Agreement may subsequently be amended by the addition of such provisions or deletion of sections identifying unbundled network elements, if applicable. If, during its review of the Agreement submitted in accordance with the foregoing, the Commission, notwithstanding the Parties’ requests to the contrary, resolves all or any part of provisions related to Unused Transmission Media or unbundled network element Combinations, the Agreement shall be revised to reflect such resolution, and the revised agreement shall be submitted to the Commission for review pursuant to Section 252. The Commission’s approval or rejection of the revised agreement shall then be subject to review pursuant to Section 252(e)(6). Notwithstanding such Commission action, the language related to Unused Transmission Media or to the Combination issue shall not be applied or used until after the FCC issues its New Rules. When the FCC issues its New Rules the Agreement shall be amended to reflect the rules then applicable to unbundled network elements and Combinations, and the amended agreement shall be submitted to the Commission for review pursuant to Section 252. The Commission’s approval or rejection of the amended agreement may then be subject to review.

Unbundled Network Elements and Combinations. On January 25, 1999, the United States Supreme Court vacated 47 C.F.R. 51.319 (“FCC Rule 319”) which was in effect at the time the Commission conducted the arbitration proceeding and issued its Orders pursuant to which this Agreement was produced (the “Commission’s Orders”). GTE believes that as a result of the Court’s decision it is not legally obligated to unbundle the network elements identified by the Commission’s Orders. The Parties anticipate, however, that the FCC will issue new final rules regarding unbundling of network elements (the “New Rules”). The Court also ruled that 47 C.F.R. 315(b), concerning combinations of currently-combined network elements is lawful. AT&T believes that pursuant to the Court’s decision and other Applicable Law AT&T is legally entitled to obtain Combinations from GTE. Notwithstanding GTE’s understanding of its current legal obligations, and without waiving any of its rights including, but not limited to, its rights to seek recovery of its actual costs and a sufficient explicit universal service fund, and its right to assert that under the Court’s decision it is not required to provide unbundled network elements unconditionally, GTE will provide to AT&T, subject to the terms and conditions set forth herein, the individual unbundled network elements common to FCC Rule 319 and Section 32.9 of this Agreement until the FCC issues the New Rules. Notwithstanding AT&T’s understanding of its current legal right to obtain Unused Transmission Media and Combinations from GTE, AT&T, without waiver of any of its rights concerning Combinations and Unused Transmission Media including, but not limited to, the right to obtain such Combinations, agrees not to seek or require GTE to provide Unused Transmission Media or Combinations in the State until the FCC issues the New Rules, and sections contained in this Agreement that are identified as containing issues with regard to Unused Transmission Media and Combinations shall be of no force and effect to the extent they require or raise issues with regard to provision of Unused Transmission Media and Combinations. Subject to the terms and conditions of this Section 1.1, neither Party desires to delay either approval or implementation of the terms and conditions of this Agreement in the normal course under the Act, other than those related to Unused Transmission Media and the Combination issue. Neither Party desires to relinquish its rights as they pertain to unbundled network elements or the Combinations; and neither party does relinquish its rights by virtue of these provisions. The Parties therefore agree that the provisions of this Agreement related to Unused Transmission Media and Combinations are identified and are intended to be left unresolved until after the FCC issues its New Rules. The Parties intend that when this Agreement is submitted to the Commission for review in the normal course under § 252(e)(6) of the Act with language related to Unused Transmission Media and the Combination issue unresolved, that such disputed language shall remain disputed and shall not be resolved by the Commission, and that if the Commission approves the Agreement the disputed language related to Unused Transmission Media or to the Combination issue is to be left unresolved and shall not be applied or used by the Parties. The Parties will jointly submit the Agreement for review under the Act notwithstanding the absence of provisions resolving Unused Transmission Media and the Combination issue, and the Parties will request that the Commission in reviewing the Agreement do so without reviewing or addressing the language related to Unused Transmission Media and the Combination issue. Neither Party shall claim that the Agreement so submitted may not be approved by the Commission under Section 252, or be reviewed in federal district court pursuant to Section 252(e)(6), based on the absence of provisions resolving Unused Transmission Media and the Combination issue, or the possibility that the Agreement may subsequently be amended by the addition of such provisions or deletion of sections identifying unbundled network elements, if applicable. If, during its review of the Agreement submitted in accordance with the foregoing, the Commission, notwithstanding the Parties’ requests to the contrary, resolves all or any part of provisions related to Unused Transmission Media or unbundled network element Combinations, the Agreement shall be revised to reflect such resolution, and the revised agreement shall be submitted to the Commission for review pursuant to Section 252. The Commission’s approval or rejection of the revised agreement shall then be subject to review pursuant to Section 252(e)(6). Notwithstanding such Commission action, the language related to Unused Transmission Media or to the Combination issue shall not be applied or used until after the FCC issues its New Rules. When the FCC issues its New Rules the Agreement shall be amended to reflect the rules then applicable to unbundled network elements and Combinations, and the amended agreement shall be submitted to the Commission for review pursuant to Section 252. The Commission’s approval or rejection of the amended agreement may then be subject to review.