Exhibit 10.58
October 2, 2000 [QWEST LOGO]
Pac-West Telecom, Inc.
0000 X. Xxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Dear Xx. XxXxxx:
We have received your request that, under Section 252(i) of the
Telecommunications Act of 1996, Pac-West Telecom, Inc. ("CLEC") wishes to "Pick
and Choose" in its entirety, the terms of the Interconnection Agreement and any
associated amendments, if applicable, ("Agreement") between AT&T Corporation and
Qwest Corporation fka U S WEST Communications, Inc. ("Qwest") that was approved
by the Commission as an effective agreement in the State of Idaho. We understand
you have a copy of the Agreement.
With respect to the aforementioned Agreement, Qwest and CLEC ("the Parties")
understand and agree:
1. The Parties shall request the Commission to expedite its review and approval
of this Agreement. This Agreement shall become effective upon such approval.
2. 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, Qwest 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.
3. 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. 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. In the
event of a Commission ruling in a generic cost docket that results in changes to
the rates contained in this Agreement, the Agreement shall be automatically
modified to reflect such changes in rates.
4. 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. If 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 the Underlying Agreement
which is being adopted pursuant to Section 252(i).
5. This Agreement shall continue in force and effect through the term of the
Underlying Agreement. Thereafter, this Agreement can be terminated by either
Party on thirty (30) days written notice, if another Interconnection Agreement
will not replace the current Agreement. If there is a replacement
Interconnection Agreement, one Party can notify the other Party that it is
requesting Section 251/252 negotiations under the Federal Telecommunications Act
of 1996 ("Act"). That notification will trigger the timeframes and procedures
contained in Section 252 of the Act, or pursuant to the timeframes set forth by
the appropriate state commission. In the event of such notice, the arrangements
between our companies shall continue and be governed by the terms of the expired
agreement until the new agreement is approved by the appropriate state
commission.
6. This Agreement shall be interpreted in accordance with GTE Service Corp. v.
Federal Communications Commission, No. 99-1176 (D.C. Cir. March 17, 2000). The
Parties shall not be bound by any language in the Underlying Agreement, or any
prior interpretation or performance under such language, that are inconsistent
with the Court's decision in GTE Service Corp v. Federal Communications
Commission. The Parties also recognize that certain provisions of the terms and
conditions may be void or unenforceable as a result of the July 18, 1997 and
October 14, 1997, decisions of the United States Eighth Circuit Court of
Appeals. Additionally, this Agreement shall be interpreted in accordance with
all other relevant judicial or regulatory decisions.
7. The Parties agree that Qwest's position has been, and continues to be, that
Interconnection Agreements entered into pursuant to Sections 251 and 252 of the
Act, including the reciprocal compensation provisions of those Agreements, apply
only to local traffic. Local traffic is that traffic that originates and
terminates in the same local calling area. Each company bears the burden of
proof that the traffic being exchanged is in fact local in nature. "Pac-West's
position has been, and continues to be, that local traffic does not necessarily
exclude calls to internet service providers." "Qwest's prosition has been, and
continues to be, that reciprocal compensation does not apply to internet
traffic."
8. CLEC adopts the terms and conditions of the AT&T Corporation Agreement for
interconnection with Qwest and in applying the terms and conditions, agrees that
Pac-West Telecom, Inc. be substituted in place of "AT&T Corporation" throughout
the Agreement wheteever the latter appears.
9. Qwest requests that notice to Qwest Corporation as may be required under
the Agreement shall be provided as follows:
To: Qwest Corporation
Director Interconnection Compliance
0000 Xxxxxxxxxx Xxxxxx, Xxxx 0000
Xxxxxx, XX 00000
With copy to:
Qwest Corporation Law Department
Attention: General Counsel, Interconnection
0000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
CLEC requests that notice to CLEC as may be required under the Agreement
shall be provided as follows:
To: Mart XxXxxx
Regulatory Dept.
Pac-West Telecom, Inc.
0000 X. Xxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Phone: 000-000-0000
10. CLEC represents and warrants that it is a certified provider of local
dialtone service in the State of Idaho, and that this Agreement will cover
services in that state only.
Please sign all three original copies of this letter; retain one copy, and
overnight two copies to Xxxx Xxxxx at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000 by December 1, 2000. After December 1, 2000 Qwest may
rescind its willingness to consider the Agreement's terms and conditions, and
will consider that you have withdrawn from good faith negotiations.
Please note that Qwest will file this letter with the appropriate state
commission for approval; however, some state commissions will not approve the
letter until the CLEC is certified by the state commission. You may want to
contact the appropriate state commission to determine the requisite filing
guidelines.
Sincerely,
[Graphic of Xxxxxxxxx X. Stamp signature]
Qwest Corporation
Xxxxxxxxx X. Stamp
Director - Interconnect
1801 California, Room 2410
Xxxxxx, XX 00000
I agree to all terms and conditions contained in this letter as indicated by my
signature below:
Pac-West Telecomm, Inc.
______________________________________
CLEC Name
[Graphic of Xxxx X. Xxxxxxx signature]
Signature
Xxxx X. Xxxxxxx
______________________________________
Name
Vice President - Regulatory
______________________________________
Title
November 10, 2000
______________________________________
Date
Pac-West's signature on this document does not indicate its concurrence with
Qwest's position on reciprocal compensation or with any other terms that did not
appear in the Underlying Agreement being adopted, or which would purport to
modify in any way the terms of the Underlying Agreement. Pac-West's signature
indicates only that it is adopting the Underlying Agreement in its entirety, as
Pac-West is permitted to do pursuant to Section 252(i) of the Communications Act
of 1934, as amended, 47 U.S.C. (S)252(i). Pac-West will of course abide by any
final determination as to the parties' obligations under the Underlying
Agreement pursuant to state requirements, FCC rules, or other applicable
requirements of judicial or regulatory authorities with jurisdiction.
Office of the Secretary
Service Date
February 27, 2001
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT APPLICATION )
OF QWEST CORPORATION AND FAIRPOINT ) CASE NO. USW-T-00-13
COMMUNICATIONS, INC. FOR APPROVAL OF )
THE SECOND AND THIRD AMENDMENTS TO A )
WIRELINE INTERCONNECTION AGREEMENT )
PURSUANT TO 47 U.S.C. (S)252(e). )
__________________________________________)
IN THE MATTER OF THE JOINT APPLICATION )
OF QWEST CORPORATION AND ADVANCED ) CASE NO. USW-T-98-22
TELCOM, INC. FOR APPROVAL OF THE )
SECOND AND THIRD AMENDMENTS TO AN )
EXISTING WIRELINE INTERCONNECTION )
AGREEMENT PURSUANT TO 47 U.S.C. (S)252(e).)
__________________________________________)
IN THE MATTER OF THE JOINT APPLICATION )
OF QWEST CORPORATION AND DSLNET ) CASE NO USW-T-99-19
COMMUNICATIONS, LLC FOR APPROVAL OF )
THE FOURTH AND FIFTH AMENDMENTS TO )
AN EXISTING WIRELINE INTERCONNECTION )
AGREEMENT PURSUANT TO 47 U.S.C. (S)252(e).)
__________________________________________)
IN THE MATTER OF THE JOINT APPLICATION )
OF VERIZON NORTHWEST, INC. AND ) CASE NO. VZN-T-01-1
WASHINGTON RSA NO 8, LP FOR APPROVAL )
OF A WIRELESS INTERCONNECTION )
AGREEMENT PURSUANT TO 47 U.S.C. (S)252(e).)
__________________________________________)
IN THE MATTER OF THE JOINT APPLICATION )
OF VERIZON NORTHWEST, INC. AND MAX-TEL ) CASE NO. VZN-T-01-2
COMMUNICATIONS, INC. FOR APPROVAL )
OF A WIRELINE INTERCONNECTION )
AGREEMENT PURSUANT TO 47 U.S.C. (S)252(e).)
__________________________________________)
IN THE MATTER OF THE JOINT APPLICATION )
OF QWEST CORPORATION AND MULTIBAND ) CASE NO USW-T-99-30
COMMUNICATIONS, LLC. FOR APPROVAL OF )
THE FIRST AND SECOND AMENDMENTS TO A )
WIRELINE INTERCONNECTION AGREEMENT ) ORDER NO. 28656
PURSUANT TO 47 U.S.C. (S)252(e). )
)
__________________________________________)
ORDER NO. 28656 1
IN THE MATTER OF THE APPLICATION OF )
QWEST CORPORATION AND PAC-WEST ) CASE NO. QWE-T-01-2
TELECOM, INC. FOR APPROVAL OF A )
WIRELINE INTERCONNECTION )
AGREEMENT PURSUANT TO 47 U.S.C. (S)252(e) )
___________________________________________)
IN THE MATTER OF THE APPLICATION OF )
QWEST CORPORATION AND WASHINGTON ) CASE NO. QWE-T-01-1
RSA NO. 8 LP FOR APPROVAL OF A TYPE 2 )
WIRELESS INTERCONNECTION )
AGREEMENT PURSUANT TO 47 U.S.C. (S)252(e) )
___________________________________________)
In these cases, the Commission is asked to approve both new interconnection
agreements and amendments to agreements which were previously approved by the
Commission.
BACKGROUND
Under the provisions of the federal Telecommunications Act of 1996,
interconnection agreements must be submitted to the Commission for approval. 47
U.S.C. (S)252(e)(1). The Commission may reject an agreement adopted by
negotiations only if it finds that the agreement: (1) discriminates against
telecommunications carrier not a party to the agreement; or (2) implementation
of the agreement is not consistent with the public interest, convenience and
necessity. 47 U.S.C. (S)252(e)(2(9A). As the Commission recently noted in Order
No. 28427, companies voluntarily entering into interconnection agreements "may
negotiate terms, prices and conditions that do not comply with either the FCC
rules or with the provisions with Section 251(b) or (c)." Order No. 28427 at 11
(emphasis original). This comports with the FCC's statement that "a state
commission shall have authority to approve an interconnection agreement adopted
by negotiation even if the terms of the agreement do not comply with the
requirements of [Part 51]." 47 C.F.R. (S)51.3.
THE CURRENT APPLICATIONS
The commission as been asked to approve these interconnection agreements
and amendments to existing interconnection agreements. These agreements are
discussed in greater detail below.
1. Qwest Corporation and FairPoint Communications, Inc. (Case No.
USW-T-00-13). In this case, the parties have requested the Commission to approve
the Second and Third Amendments to the Wireline Interconnection Agreement
approved by the Commission on July
ORDER XX. 00000 0
00, 0000. Xxxxx Xx. 00000. The Second Amendment is made in order to add the
terms, conditions and rates for Unbundled Dedicated Interoffice Transport and
Unbundled Dark Fiber. The Third Amendment is made in order to add rates, terms
and conditions for Line Sharing and Enhanced Extended Loop to the original
Agreement.
2. Qwest Corporation and Advanced TelCom, Inc. (Case No. USW-T-98-22). In
this Application, the parties request that the Commission approve the Second and
Third Amendments to an existing Wireline Interconnection Agreement approved by
the Commission on January 26, 1999. Order No. 27892. The Second Amendment adds
terms and conditions for local number portability arrangements. The Third
Amendment adds Unbundled Network Elements Combinations to the original
Agreement.
3. Qwest Corporation and DSLnet Communications, LLC. (Case No.
USW-T-99-19). In this Application, the parties request that the Commission
approve the Fourth and Fifth Amendments to an existing Wireline Interconnection
Agreement approved by the Commission on October 19, 1999. Order No. 28180. The
Fourth Amendment is made in order to replace in its entirety, Section 8.2.4 of
the original Agreement which addresses Unbundled Loops. The Fifth Amendment is
made in order to replace the Interim Line Sharing Agreement the parties entered
into on May 3, 2000. This Amendment adds terms, conditions and rates for Line
Sharing.
4. Verizon Northwest, Inc. and Washington RSA No. 8. LP. (Case No.
VZN-T-01-1). In this case, the parties request that the Commission approve a
wireless interconnection agreement. Washington RSA No. 8 has chosen to adopt the
terms and conditions of the existing arbitrated interconnection agreement
between AT&T Wireless Service, Inc. and Verizon. See Xxxx Xx. XXX-X-00-0, Xxxxx
Xx. 00000.
5. Verizon Northwest, Inc. and Max-Tel Communications, Inc. (Case No.
VZN-T-01-2). In this case, the parties request that the Commission approve a
wireline interconnection agreement. The terms and conditions of this agreement
are similar to those previously approved by the Commission. See Xxxx Xx.
XXX-X-00-0, Xxxxx Xx. 00000. However, Max-Tel does not currently have a valid
Certificate of Public Convenience and Necessity authorizing them to offer the
services covered by its interconnection agreement with Verizon. Max-Tel did file
an Application for a Certificate. However, the Commission conditioned the
issuance of this Certificate on the Company posting a $5,000 performance bond
and filing its final tariff. See
ORDER NO. 28656 3
Case No. GNR-T-97-2, Order Nos. 27018 and 27122. Max-Tel has never satisfied
these conditions, thus it still has not obtained a valid Certificate.
6. Qwest Corporation and Multiband Communications, LLC. (Case No.
USW-T-99-30). In this Application, the parties request that the Commission
approve the First and Second Amendments to the existing Wireline Interconnection
Agreement for the state of Idaho. The First Amendment is made in order to
replace the Line Sharing Agreement entered into by the parties in April 2000. It
replaces rates, terms and conditions in the original Agreement. The Second
Amendment is made to replace both the terms and conditions regarding Line
Sharing that are stated in the original Agreement and the First Amendment. To
the extent Multiband is intending to offer local exchange service through its
interconnection agreement with Qwest it does not have a valid Certificate of
Public Convenience and Necessity. To the extent Multiband is offering non-basic
local exchange services it has not complied with the requirements of Idaho Code
(SS)62-604 and 62-606.
7. Qwest Corporation and Pac-West Telecom, Inc. (Case No. QWE-T-01-2). In
this case, the parties request that the Commission approve a wireline
interconnection agreement. Pac-West has chosen to adopt the terms and conditions
of the existing interconnection agreement between AT&T Corporation and Qwest
Corporation f.k.a. U S West Communications, Inc. Case Nos. USW-T-96-15 and
ATT-T-96-1.
8. Qwest Corporation and Washington RSA No. 8, LP (Case No. QWE-T-01-1). In
this Application, the parties request that the Commission approve a Type 2
Wireless Interconnection Agreement for the state of Idaho. The rates and terms
of the interconnection agreement are similar to those previously approved by the
Commission. See Xxxx Xx. XXX-X-00-0, Xxxxx Xx. 00000.
STAFF ANALYSIS AND RECOMMENDATION
The Staff has reviewed these Applications and did not find that any terms
and conditions to be discriminatory or contrary to the public interest. Staff
believes that the interconnection agreements and the amendments to
interconnection agreements are consistent with the pro-competitive policies of
this Commission, the Idaho Legislature, and the federal Telecommunications Act.
Accordingly, Staff believes that the Applications merit the Commission's
approval.
ORDER NO. 28656 4
COMMISSION DECISION
Under the terms of the Telecommunications Act, interconnection agreements must
be submitted to the Commission for approval. 47 U.S.C. (S)252(e)(1). The
Commission's review is limited, however. The Commission may reject an agreement
adopted by negotiation only if it finds that the agreement discriminates against
a telecommunication carrier not a party to the agreement or implementation of
the agreement is not consistent with the public interest, convenience and
necessity. Id. Based upon our review of the Application, the Staff's
recommendation and on the fact no other person commented on these Applications,
the Commission finds that the above interconnection agreements and amendments to
previously approved interconnection agreements are consistent with the public
interest, convenience and necessity and do not discriminate. Therefore, the
Commission finds that these Applications should be approved.
ORDER
IT IS HEREBY ORDERED that the interconnection agreements and amendments to
interconnection agreements discussed above are approved. Terms of the agreements
that are not already in effect shall be effective as of the date of this Order.
IT IS FURTHER ORDERED that the Second and Third Amendments to the existing
Interconnection Agreement between Qwest Corporation and FairPoint
Communications, Inc., in Case No. USW-T-00-13, are approved.
IT IS FURTHER ORDERED that the Second and Third Amendments to an existing
Wireline Interconnection Agreement between Qwest Corporation and Advanced
TelCom, Inc., in Case No. USW-T-98-22, are approved.
IT IS FURTHER ORDERED that the Fourth and Fifth Amendments to an existing
Wireline Interconnection Agreement between Qwest Corporation and DSLnet
Communications, LLC, in Case No. USW-T-99-19, are approved.
IT IS FURTHER ORDERED that the Wireless Interconnection Agreement between
Verizon Northwest, Inc. and Washington RSA No. 8, LP, in Case No. VZN-T-01-1, is
approved.
IT IS FURTHER ORDERED that the Resale Interconnection Agreement between
Verizon Northwest, Inc. and Max-Tel Communications, Inc., in Case No.
VZN-T-01-2, is approved. However, Max-Tel may not begin to provide service in
Idaho until it has secured a
ORDER NO. 28656 5
valid Certificate of Public Convenience and Necessity from the Commission by
posting a $5,000 performance bond and filing its final tariff. See Order Nos.
27018 and 27122.
IT IS FURTHER ORDERED that the First and Second Amendments to the existing
Wireline Interconnection Agreement between Qwest Corporation and Multiband
Communications, LLC, in Case No. USW-T-99-30, are approved. Approval of this
Agreement does not negate the Company's responsibilities to obtain a Certificate
of Public Convenience and Necessity if it is offering local exchange services or
complying with Idaho Code (SS)62-604 and 62-606 if it only provides other
telecommunications services.
IT IS FURTHER ORDERED that the Wireline Interconnection Agreement between
Qwest Corporation and Pac-West Telecom, Inc., in Case No. QWE-T-01-2, is
approved.
IT IS FURTHER ORDERED that the Type 2 Wireless Interconnection Agreement
between Qwest Corporation and Washington RSA No. 8, LP, in Case No. QWE-T-01-1,
is approved.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally
decided by this Order) or in interlocutory Orders previously issued in these
Case Nos. USW-T-00-13, USW-T-98-22, USW-T-99-19, VZN-T-01-1, VZN-T-01-2,
USW-T-99-30, QWE-T-01-2, QWE-T-01-1 may petition for reconsideration within
twenty-one (21) days of the service date of this Order with regard to any matter
decided in this Order or in interlocutory Orders previously issued in these
cases. Within seven (7) days after any person as petitioned for reconsideration,
any other person may cross-petition for reconsideration. See Idaho Code
(SS)61-626 and 62-619.
ORDER NO. 28656 6
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho,
this 26th day of February 2001.
/s/ Xxxxxx X. Xxxxxx
--------------------------------
XXXXXX X. XXXXXX, PRESIDENT
/s/ Xxxxxx X. Xxxxx
--------------------------------
XXXXXX X. XXXXX, COMMISSIONER
/s/ Xxxx Xxxxxxxxxx
--------------------------------
XXXX XXXXXXXXXX, COMMISSIONER
ATTEST:
/s/ Xxxx X. Xxxxxx
------------------------------
Xxxx X. Xxxxxx
Commission Secretary
ORDER NO. 28656 7
