EXHIBIT 6.1
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE TELECOMMUNICATIONS
ACT OF 1996
by and between
SOUTHWESTERN XXXX TELEPHONE COMPANY
And
FULLTEL COMMUNICATIONS, INC.
SWBT/FULLTEL COMMUNICATIONS, INC.
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TABLE OF CONTENTS
1.0 DEFINITIONS....................................................................................3
2.0 INTERPRETATION AND CONSTRUCTION...............................................................11
3.0 RATES CHARGES AND IMPLEMENTATION - GENERALLY..................................................11
3.1 Implementation Schedule and Interconnection Activation Dates..................................11
3.2 Rates and Charges - Generally.................................................................12
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2).................................................12
4.1 Scope.........................................................................................12
4.2 Interconnection Coverage......................................................................13
4.3 Methods for Interconnection...................................................................14
4.4 Physical Architecture.........................................................................14
4.5 Technical Specifications......................................................................16
4.6 Interconnection in Additional Metropolitan Exchange Areas.....................................16
5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC
PURSUANT TO SECTION 251(c)(2).....................................................................17
5.1 Scope of Traffic..............................................................................17
5.2 Responsibilities of the Parties...............................................................17
5.3 Reciprocal Compensation for Termination of Local Traffic......................................18
5.4 Reciprocal Compensation for Transit Traffic...................................................19
5.5 Reciprocal Compensation for Termination of IntraLATA Intexchange Traffic......................19
5.6 Compensation for Origination and Termination of Switched Access Service Traffic to or
From an IXC (Meet-Point Billing (MPB) Arrangements)...........................................20
5.7 Billing Arrangements for Compensation for Termination of IntraLATA, Local, Transit
and Optional Calling Area Traffic.............................................................21
6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO
251(c)(2).........................................................................................23
6.1 Scope of Traffic..............................................................................23
6.2 Trunk Group Architecture and Traffic Routing..................................................23
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC...........................................23
7.1 Information Services Traffic..................................................................23
7.2 Line Status Verification (LSV)/Busy Line Interrupt (BLI) Traffic..............................23
7.3 Wireless Traffic..............................................................................24
7.4 911 Service...................................................................................24
8.0 SIGNALING.....................................................................................24
9.0 NUMBERING.....................................................................................25
10.0 RESALE - Sections 251(c)(4) and 251(b)(1).....................................................26
10.1 Availability of Retail Telecommunications Services............................................26
10.2 Availability of Retail Telecommunications Services for Resale.................................26
11.0 UNBUNDLED NETWORK ELEMENTS - SECTIONS 251(c)(3), 271(c)(2)(B)(II),
(IV),(V),(VI),(X).....................................................................................26
12.0 NOTICE OF CHANGES - SECTION 251(c)(5).........................................................26
13.0 COLLOCATION-SECTION 251(c)(6).................................................................27
14.0 NUMBER PORTABILITY - SECTIONS 251(b)(2), 271(c)(2)(B)(xi).....................................27
15.0 DIALING PARITY - SECTION 251(b)(3) AND 271(e)(2)..............................................27
16.0 ACCESS TO RIGHTS-OF-WAY - SECTION 251(b)(4)...................................................27
17.0 DATABASE ACCESS...............................................................................28
18.0 COORDINATED SERVICE CALLS.....................................................................28
18.1 Referral Announcement.........................................................................28
18.2 Coordinated Repair Calls......................................................................28
19.0 OTHER SERVICES 271(c)(2)(vii), 271(c)(2)(B)(viii)................................................29
19.1 White Pages...................................................................................29
19.2 Calling Name Information......................................................................29
19.3 Billing/Collecting/Remitting..................................................................29
19.4 911 Service...................................................................................29
19.5 Directory Assistance..........................................................................29
19.6 Direct Access.................................................................................29
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19.7 Operator Services.............................................................................29
19.8 Clearinghouse Services........................................................................29
19.9 Hosting.......................................................................................29
19.10 Recording.....................................................................................29
19.11 Signaling System 7 Interconnection............................................................30
20.0 GENERAL RESPONSIBLITIES OF THE PARTIES............................................................30
21.0 EFFECTIVE DATE, TERM AND TERMINATION..............................................................31
22.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES......................................................32
23.0 SLAMMING..........................................................................................32
24.0 SEVERABILITY......................................................................................33
25.0 LIMITATION OF LIABILITY...........................................................................33
26.0 INDEMNIFICATION...................................................................................34
27.0 REGULATORY APPROVAL...............................................................................35
28.0 MISCELLANEOUS.....................................................................................35
28.1 Authorization.................................................................................35
28.2 Compliance and Certification..................................................................35
28.3 Law Enforcement...............................................................................36
28.4 Independent Contractor........................................................................36
28.5 Force Majeure.................................................................................36
28.6 Confidentiality...............................................................................37
28.7 Governing Law.................................................................................38
28.8 Taxes.........................................................................................38
28.9 Non-Assignment................................................................................39
28.10 Non-Waiver....................................................................................40
28.11 Audits........................................................................................40
28.12 Disputed Amounts..............................................................................40
28.13 Dispute Resolution............................................................................41
28.14 Notices.......................................................................................41
28.15 Publicity and Use of Trademarks or Service Marks..............................................42
28.16 Section 252(i) Obligations....................................................................43
28.17 Joint Work Product............................................................................43
28.18 Intervening Law...............................................................................44
28.19 No Third Party Beneficiaries; Disclaimer of Agency............................................44
28.20 No License....................................................................................44
28.21 Survival......................................................................................44
28.22 Scope of Agreement............................................................................44
28.23 Entire Agreement..............................................................................44
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INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF THE TELECOMMUNICATIONS
ACT OF 1996
This Interconnection Agreement under Sections 251 and 252 of the
Telecommunications Act of 1996 ("Agreement"), is by and between Southwestern
Xxxx Telephone Company, a Missouri Corporation ("SWBT"), and Fulltel
Communications, Inc., an Oklahoma corporation ("CLEC").
WHEREAS, pursuant to Section 252(i) of the Federal Telecommunications Act
of 1996, CLEC and SWBT have entered into an agreement on the same terms and
conditions contained in the SWBT/Cox Oklahoma Telcom, Inc. Agreement for the
State of Oklahoma ("the underlying Agreement.")
WHEREAS, the Parties acknowledge and agree that the rates, terms and
conditions set forth in this Agreement are subject to any appeals and that
Southwestern Xxxx reserves all appellate rights with respect to such rates,
terms and conditions and does not waive any legal arguments by executing this
Agreement. It is Southwestern Xxxx'x intent and understanding of state and
federal law, that any negotiations, appeal, stay, injunction or similar
proceeding which impacts the applicability of such rates, terms or conditions to
the underlying Agreement will similarly and simultaneously impact the
applicability of such rates, terms and conditions to CLEC. In the event that any
of the rates, terms and/or conditions herein are invalidated, modified or stayed
by any action of any state or federal regulatory bodies, courts or regulatory
agencies of competent jurisdiction ("such Actions"), the Parties shall
immediately incorporate changes from the underlying Agreement, made as a result
of such Actions, into this Agreement. Where revised language is not immediately
available, the Parties shall expend diligent efforts to incorporate the results
of such Actions into this Agreement on an interim basis, but shall conform this
Agreement to the underlying Agreement, once such changes are filed with the
Commission.
Pursuant to this Agreement for Local Wireline Network interconnection and
Service Resale ("Agreement"), CLEC a Local Service Provider ("LSP") and
Southwestern Xxxx Telephone Company ("SWBT") (collectively, "the Parties") will
extend certain arrangements to one another within each LATA in which they both
operate within the state of Oklahoma in which the Parties may operate within the
term of this Agreement. This Agreement includes terms, conditions, and prices
for network interconnection, access to unbundled network elements, ancillary
network services, and retail services, provided at wholesale prices to CLEC,
available for resale. The Agreement will be submitted to the Oklahoma
Corporation Commission for regulatory concurrence.
Notwithstanding this mutual commitment, however, the Parties enter 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 matters related to the types of arrangements
prescribed by this Agreement.
The Parties agree and understand that SWBT and CLEC are proposing certain
provisions in this Agreement, based on the FCC's First Report and Order, In the
Matter of Implementing of the Local Competition Provisions in the
Telecommunications Act of 1996, CC Docket No. 96-98, released Aug. 8, 1996 ("FCC
1st Order") and the Second Report and Order and Memorandum Opinion and Order, In
the Matter of Implementation of the Local Competition Provisions of the
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Telecommunications act of 1996, CC Docket No. 96-98, released Aug. 8, 1996 ("FCC
2d Order"). To the extent that certain of the rules contained in the FCC 1st
Order and the FCC 2d Order, or any other FCC Order, adopted to implement the
Telecommunications Act of 1996, are deemed by the courts to be not effective,
this Agreement shall be modified to comport with the final court decisions and
subsequent FCC rules adopted to comply with the court's decisions and to the
extent that such modifications prohibit the Parties from performing their
obligations under this Agreement, then they may terminate this Agreement upon
reasonable notice.
WHEREAS, the Parties want to interconnect their networks at mutually agreed
upon points of interconnection to provide, directly or indirectly, Telephone
Exchange Services (as defined below) and Exchange Access (as defined below) to
residential and business end users predominantly over their respective telephone
exchange service facilities in Oklahoma; and
WHEREAS, the Telecommunications Act of 1996 (the "Act") was signed into law
on February 2, 1996; and
WHEREAS, the Parties intend to negotiate a permanent interconnection
agreement pursuant to Section 251 of the Telecommunications Act of 1996; and
WHEREAS, the Act places certain duties and obligations upon, and grants
certain rights to, Telecommunications Carriers; and
WHEREAS, SWBT is an Incumbent Local Exchange Carrier.
WHEREAS, the Parties should be able to efficiently exchange traffic and
signaling at well-defined and standardized points of mutually agreed
interconnection; and
WHEREAS, SWBT 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 SWBT
negotiate an Agreement with CLEC for the provision of interconnection,
reciprocal compensation, resale and unbundled Network Elements (including
Ancillary Functions and additional features) pursuant to the Act and in
conformance with SWBT's duties under the Act; and
WHEREAS, for purposes of this Agreement, the Parties intend to operate
where SWBT is the incumbent local exchange carrier and CLEC, a competitive local
exchange carrier, is certified by the Oklahoma State Commission, as required.
WHEREAS, the Parties are entering into this Agreement to set forth the
respective obligations of the Parties and the terms and conditions under which
the Parties will interconnect their networks and provide other services as
required by the Telecommunications Act of 1996 ("Act") and additional services
as set forth herein; and
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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 SWBT hereby covenant and agree as follows:
SCOPE OF AGREEMENT
A. This Agreement sets forth the terms, conditions and prices under which SWBT
agrees to provide (a) services for resale (hereinafter referred to as
"Resold Services") (b) certain Unbundled Network Elements, (as specified in
Appendix UNE) Ancillary Functions and additional features to CLEC
(hereinafter collectively referred to as "Network Elements") for CLEC's own
use or for resale to others, and (c) Interconnection and reciprocal
compensation for the exchange of local traffic, for the termination of
local traffic between SWBT and CLEC, for purposes of offering local
exchange services. Unless otherwise provided in this Agreement, SWBT and
CLEC will perform all of their obligations hereunder throughout, to the
extent provided in the Appendices attached hereto. This Agreement includes
all accompanying appendices.
B. In the performance of their obligations under this Agreement, the Parties
shall act in consistent good faith with the intent of the Act. Where
notice, approval or other 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.
1.0 DEFINITIONS
1.1 "Act" means the Communications Act of 1934 (47 U.S.C.
153(R)), as amended by the Telecommunications Act of 1996, and as from
time-to-time interpreted in the duly authorized rules and regulations of the FCC
or a Commission within its state of jurisdiction.
1.2 "Access Services" refers to the tariffed interstate and
intrastate switched access and dedicated transport services offered for the
origination and/or termination of interexchange traffic.
1.3 "Access Service Request" or "ASR" means the industry
standard forms and supporting documentation used for ordering Access Services.
The ASR will be used to order trunking, switching, unbundled elements,
transport, services for resale and other facilities between CLEC and SWBT for
Local Interconnection Service.
1.4 "Affiliate" means a person that (directly or indirectly)
owns or controls, is owned or controlled by, or is under common ownership or
control with, another person. For purposes of this paragraph, the term "own"
means to own an equity interest (or the equivalent thereof) of more than 10
percent.
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1.5 "Access Tandem Switches" are switches used to connect end
offices to Interexchange Carrier Class 4 switches.
1.6 "Automatic Number Identification" or "ANI" is a switching
system feature that forwards the telephone number of the calling party and is
used for screening, routing and billing purposes.
1.7 "LSV/BLI Traffic" or "LSV/BLI Call" refers to an operator
call between a CLEC operator and a SWBT operator to inquire as to the busy
status of, or requesting an interruption of a call on a Local Exchange
Telecommunications Service.
1.8 "Calling Party Number" or "CPN" is a feature of signaling
system 7 (SS7) protocol whereby the ten (10) digit number of the calling party
is forwarded from the end office serving that party.
1.9 "Central Office Switch" means a single switching system
within the public switched telecommunications network, including the following:
a. "End Office Switches" which are Class 5 switches where
end user Exchange Services are directly connected and
offered.
b. "Tandem Office Switches" or "Tandems" which are
switches, which may be Access Tandems or other, used to
connect and switch trunk circuits between Central
Office Switches and intra/interLATA carriers.
Central Office Switches may be employed as combination
End Office/Tandem Office switches.
1.10 "CLASS Features" mean certain CCS-based features
available to end users including, but not limited to: Automatic Call Back; Call
Trace; Caller Identification and related blocking features; Distinctive Ringing;
Call Waiting; Selective Call Forward; and Selective Call Rejection.
1.11 "Collocation" is the virtual or physical collocation
service that SWBT provides in its designated wire centers.
1.12 "Collocation Arrangement", as more fully described in
Appendix Collocation, means an arrangement whereby one Party's (the "Collocating
Party") facilities are terminated in its equipment necessary for Interconnection
or for access to Network Elements on an unbundled basis , which has been
installed and maintained at the premises of a second Party (the "Housing
Party"). Collocation may be "physical" or "virtual." In "Physical Collocation,"
the Collocating Party installs and maintains its own equipment in the Housing
Party's premises. In "Virtual Collocation," the Housing Party installs and
maintains the collocated equipment in the Housing Party's premises.
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Collocation includes, but is not limited to, collocation of 38 GHz basic
transmission equipment, provided it complies with the guidelines in SWBT's
Physical Collocation Technical Publication provided to CLEC.
1.13 "Commissions" means the Oklahoma Corporation Commission
and the FCC collectively, otherwise Commission means the Oklahoma Corporation
Commission.
1.14 "Common Channel Signaling" or "CCS" is a special network,
fully separate from the transmission path of the public switched network, that
digitally transmits call set-up and network control data.
1.15 "Local Service Provider" or "LSP" is a telecommunications
provider certified to provide Basic Exchange Telecommunications Service in
geographic areas which may include SWBT's local exchange territory.
1.16 As used in this Agreement, "Dialing Parity" refers to
both Local Dialing Parity and Toll Dialing Parity. "Dialing parity" means that a
person that is not an affiliate of a local exchange carrier is able to provide
telecommunications services in such a manner that customers have the ability to
route automatically, without the use of any access code, their
telecommunications to the telecommunications services provider of the customer's
designation from among two or more telecommunications services providers
(including such local exchange carrier).
1.17 "DID" means direct inward dialing.
1.18 "Digital Signal Level" means one of several transmission
rates in the North American time-division multiplex hierarchy.
1.19 "Digital Signal Level 0" or "DS0" means the 64 Kbps
zero-level signal in the North American time-division multiplex hierarchy.
1.20 "Digital Signal Level 1" or "DS1" means the 1.544 Mbps
first-level signal in the North American time-division multiplex hierarchy. In
the time-division multiplexing hierarchy of the telephone network, DS1 is the
result of the initial level of multiplexing.
1.21 "Digital Signal Level 3" or "DS3" means the 44.736 Mbps
third-level in the North American time-division multiplex hierarchy. In the
time-division multiplexing hierarchy of the telephone network, DS3 is defined as
the third level of multiplexing.
1.22 "Electronic File Transfer" refers to any system or
process which utilizes an electronic format and protocol to send or receive data
files.
1.23 "End User" means a third-party residence or business,
that subscribes to telecommunications services provided by either of the
Parties, or by another telecommunications service provider.
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1.24 "Exchange Message Record" or "EMR" means the standard
used for exchange of telecommunications message information among
telecommunications carriers for billable, non-billable, sample, settlement and
study data. EMR format is contained in Bellcore Practice BR-010-200-010 XXXX
Exchange Message Record.
1.25 "Telephone Exchange Service" means (A) service within a
telephone exchange, or within a connected system of telephone exchanges within
the same exchange area operated to furnish to subscribers intercommunicating
service of the character ordinarily furnished by a single exchange, and which is
covered by the exchange service charge, or (B) comparable service provided
through a system of switches, transmission equipment, or other facilities (or
combination thereof) by which a subscriber can originate and terminate a
telecommunication service.
1.26 "Fiber-Meet" means an interconnection architecture method
whereby the Parties physically interconnect their networks via an optical fiber
interface (as opposed to an electrical interface) at a mutually agreed upon
location.
1.27 "Local Exchange Carrier" or "LEC" means an incumbent
local exchange carrier or a Local Service Provider (LSP).
1.28 Forward Looking Long Run Incremental Cost (LRIC) as
defined by the Commission means the long run forward looking additional cost
caused by providing all volume-sensitive and volume-insensitive inputs required
to provide a service or network element offered as a service, using economically
efficient current technology efficiently deployed. LRIC also equals the cost
avoided, in the long run, when a service or network element offered as a service
is no longer produced. LRIC excludes costs directly and solely attributable to
the production of other services or network elements offered as services, and
unattributable costs which are incurred in common for all the services supplied
by the firm. The long run means a period long enough so that the cost estimates
are based on the assumption that all inputs are variable.
1.29 "Initial Billing Company" or "IBC" is as described in
Section 5.6.3 of this Agreement.
1.30 "Interconnection" is as described in the Act and refers
to the connection of separate pieces of equipment, facilities, or platforms
between or within networks for the purpose of transmission and routing of
Telephone Exchange Service traffic and Exchange Access traffic
1.31 "Interconnection Activation Date" is the date that the
construction of the joint facility interconnection arrangement has been
completed, trunk groups have been established, and joint trunk testing is
completed.
1.32 "Interexchange Carrier" or "IXC" means a carrier that
provides, directly or indirectly, interLATA or intraLATA Telephone Toll
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Services. For purposes of Section 6.0 of this Agreement, the term "IXC" includes
any entity which purchases FGB or FGD Switched Exchange Access Service in order
to originate or terminate traffic to/from CLEC's end users.
1.33 "Interim Number Portability" (INP) as referenced in this
Agreement, is the capability of an end user to retain their telephone number
when changing local service providers, using RCF or DID technology.
1.34 "IntraLATA Toll Traffic" means those intraLATA station
calls that are not defined as Local Traffic in this Agreement.
1.35 "Integrated Services Digital Network" or "ISDN" is
switched network service providing end-to-end digital connectivity for the
simultaneous transmission of voice and data. ISDN is provisioned end-to-end
pursuant to TR-444. Basic Rate Interface ISDN ("BRI-ISDN") provides for digital
transmission of two analog or 64 Kbps digital data information bearing channels
("Bearer Channels") and one 16 Kbps data channel (2B+D).
1.36 "Line Information Database" or "LIDB" is as described in
Appendix LIDB.
1.37 "Local Calling Area" is as described in Section 5.1.2 of
this Agreement.
1.38 "Local Exchange Carrier" or "LEC" means any person that
is engaged in the provision of telephone exchange service or exchange access.
Such term does not include a person insofar as such person is engaged in the
provision of a commercial mobile service under section 332(c),except to the
extent that the Commission finds that such service should be included in the
definition of such term.
1.39 "Local Exchange Routing Guide" or "LERG" is a Bellcore
reference typically used by LECs, IXCs and CLCs to identify NPA-NXX routing and
homing information.
1.40 "Local Serving Office" means the end office that serves
an end user.
1.41 "Local Traffic," for purposes of intercompany
compensation, means traffic that originates and terminates between or among end
users within a SWBT local calling area defined in SWBT tariffs as they exist at
the time of the signing of this agreement, including mandatory local calling
scope arrangements, but excluding Optional EAS areas, if any. "Mandatory Local
Calling Scope" is an arrangement that requires end users to subscribe to a local
calling scope beyond their basic exchange serving area. In no event shall the
Local Traffic area for purposes of local call termination billing between the
Parties be decreased during the term of this Agreement.
1.42 "Losses" means any and all losses, costs (including court
costs), claims, damages (including fines, penalties, and criminal or civil
judgments and settlements), injuries, liabilities and expenses (including
attorneys' fees).
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1.43 "MECAB" refers to the Multiple Exchange Carrier Access
Billing document prepared by the Billing Committee of the Ordering and Billing
Forum (OBF), which functions under the auspices of the Carrier Liaison Committee
(CLC) of the Alliance for Telecommunications Industry Solutions (ATIS). The
MECAB document, published by Bellcore as Special Report SR-BDS-000983, contains
the recommended guidelines for the billing of access services provided to an IXC
by two or more LECs, or by one LEC in two or more states within a single LATA.
The latest release is issue No. 5, dated June 1994.
1.44 "MECOD" refers to the Multiple Exchange Carriers Ordering
and Design Guidelines for Access Services - Industry Support Interface, a
document developed by the Ordering/Provisioning Committee of the Ordering and
Billing Forum (OBF), which functions under the auspices of the Carrier Liaison
Committee (CLC) of the Alliance for Telecommunications Industry" Solutions
(ATIS). The MECOD document, published by Bellcore as Special Report SR
STS-002643, establishes methods for processing orders for access service which
is to be provided to an IXC by two or more telecommunications providers. The
latest release is issue No. 3, dated February 1996.
1.45 "Meet Point" is as described in Section 5.6.2 of this
Agreement.
1.46 "Meet-Point Billing" or "MPB" refers to a billing
arrangement whereby two or more Telecommunications Carriers jointly provide for
switched access service to an IXC, with each LEC receiving an appropriate share
of its switched access revenues as defined by its effective access tariffs.
1.47 "Metropolitan Exchange Area" means a geographical area
defined in SWBT current tariffs effective December, 1996 as a metropolitan
exchange local calling area. For example, Oklahoma City, Tulsa, and each
separate Metropolitan Exchange Area.
1.48 "Multi-Frequency" or "MF" means signaling arrangements
that make use of pairs of frequencies out of a group of six frequencies. MF
signals are used for called number address signaling, calling number
identification, ring-back, and coin control.
1.49 "Multiple Xxxx/Multiple Tariff method" is the meet-point
billing method where each LEC prepares and renders its own meet point xxxx to
the IXC in accordance with its own tariff for that portion of the
jointly-provided Switched Access Service which the LEC provides. MECAB documents
refer to this method as "Multiple Xxxx/Single Tariff."
1.50 "North American Numbering Plan" or "NANP" means the
system of telephone numbering employed in the United States, Canada, and certain
Caribbean
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countries. It denotes the three digit Numbering Plan Area code and a seven digit
telephone number made up of a three digit Central Office code plus a four digit
station number.
1.51 "Network Element" means a facility or equipment used in
the provision of a telecommunications service. Such term also includes features,
functions, and capabilities that are provided by means of such facility or
equipment, including subscriber numbers, data bases, signaling systems, and
information sufficient for billing and collection or used in the transmission,
routing, or other provision of a telecommunications service.
1.52 "Network Element Bona Fide Request" means the process
described in Appendix UNE that is attached hereto and incorporated herein that
prescribes the terms and conditions relating to a Party's request that the other
Party provide a Network Element.
1.53 "Numbering Plan Area" or "NPA" is sometimes referred to
as an area code. This is the three digit indicator that is defined by the "A",
"B", and "C" digits of each 10-digit telephone number within the North American
Numbering Plan (NANP). There are two general categories of NPA, "Geographic
NPAs" and "Non-Geographic NPAs". A Geographic NPA is associated with a defined
geographic area, and all telephone numbers bearing such NPA are associated with
services provided within that Geographic area. A Non-Geographic NPA, also known
as a "Service Access Code" (SAC Code) is typically associated with a specialized
telecommunications service that may be provided across multiple geographic NPA
areas.
1.54 "NXX", "NXX Code", or "Central Office Code" is the three
digit switch entity indicator that is defined by the "D", "E", and "F" digits of
a 10 digit telephone number within the North American Numbering Plan (NANP).
1.55 "Permanent Number Portability" or "PNP" means the use of
the local routing number (LRN) database solution to provide fully transparent
LNP for all customers and all providers without limitation.
1.56 "Point of Interface" or "POI" is a mutually agreed upon
point of demarcation where the exchange of traffic between two LECs takes place.
1.57 "Pre-ordering and Ordering" is as described in Appendix
OSS.
1.58 "Port" is as described in Appendix UNE.
1.59 "Provider" means a carrier who provides services to end
users or other carriers.
1.60 "Rate Center" means the specific geographic point and
corresponding geographic area associated with one or more NPA-NXX codes that
have been assigned to a LEC for its provision of Telephone Exchange Service.
1.61 "Referral Service" means a process in which calls are
routed to an announcement which states the new telephone number of an end user.
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1.62 "Resale" is as described in Appendix Resale.
1.63 "Routing Point" means a location that a LEC or LSP has
designated on its own network as the homing (routing) point for traffic, bearing
a certain NPA-NXX designation, that is inbound to Basic Exchange
Telecommunications Services provided by the LEC or LSP. The Routing Point is
employed to calculate mileage measurements for the distance-sensitive transport
element charges of Switched Access Services. Pursuant to Bellcore Practice BR
000-000-000, the Routing Point may be an "End Office" location, or a "LEC
Consortium Point of Interconnection". Pursuant to that same Bellcore Practice,
examples of the latter shall be designated by a common language location
identifier (CLLI) code with (x)KD in positions 9, 10, 11, where (x) may be any
alphanumeric A-Z or 0-9. The above referenced Bellcore document refers to the
Routing Point as the Rating Point. The Routing Point must be located within the
LATA in which the corresponding NPA-NXX is located. However, Routing Points
associated with each NPA-NXX need not be the same as the corresponding Rate
Center, nor must there be a unique and separate Routing Point corresponding to
each unique and separate Rate Center; provided only that the Routing Point
associated with a given NPA-NXX must be located in the same LATA as the Rate
Center associated with the NPA-NXX.
1.64 "Service Control Point" or (SCP) is as described in
Appendix UNE.
1.65 "Service Switching Point" or "SSP" is as described in
Appendix UNE.
1.66 "Signaling Point" or "SP" is as described in Appendix
UNE.
1.67 "Signal Transfer Point" or "STP" is as described in
Appendix UNE.
1.68 "Signaling System 7 or "SS7" is as described in
Appendix UNE.
1.69 "Special Access" means access other than switched access
and provides a dedicated trunk or trunk group between A and Z locations.
1.70 "Subsequent Billing Company" or "SBC" is as described in
Section 5.6.3 of this Agreement.
1.71 "Switched Exchange Access Service" means the offering of
transmission or switching services to Telecommunications Carriers for the
purpose of the origination or termination of Telephone Toll Service. Switched
Exchange Access Services include, but are not necessarily limited to: Feature
Group A, Feature Group B, Feature Group D, 800/888 access, and 900 access and
their successors or similar Switched Exchange Access services.
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1.72 "Synchronous Optical Network" or "SONET" means an optical
interface standard that allows inter-networking of transmission products from
multiple vendors. The base rate is 51.84 Mbps (OC-1/STS-1) and higher rates are
direct multiples of the base rate, up to 13.22 Gpbs.
1.73 "Tariff Services" as used throughout this Agreement
refers to SWBT interstate tariffs and intrastate tariffs.
1.74 "Telecommunications Services" is as defined in the Act.
1.75 "Transit " is as defined in the Reciprocal Compensation
Section of this Agreement.
1.76 "Trunk Side" is as defined in Appendix UNE.
1.77 "Wholesale Discount" is as described in Appendix Resale.
1.78 "Wire Center" means an occupied structure or portion
thereof in which a Party has the exclusive right of occupancy and which serves
as a Routing Point for Switched Exchange Access Service.
2.0 INTERPRETATION AND CONSTRUCTION
In the event of any amendment of the Act or any legislative, regulatory,
judicial order, rule or regulations, or other legal action that revises or
reverses the Act, the FCC's Orders in FCC Docket Nos. 96-98 and 95-185 or any
applicable FCC order or arbitration award purporting to apply the provisions of
the federal Act, the Parties reserve all of their rights and remedies, including
those to amend, alter, or revise this Agreement.
3.0 RATES CHARGES AND IMPLEMENTATION -- GENERALLY
3.1 IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES
3.1.1 Pursuant to this Agreement, CLEC and SWBT agree to the following
schedule of rates and charges:
The Parties agree to use the Commission's ordered interim
rates from Cause No. PUD 960000218 (AT&T/SWBT Arbitration). The Parties agree to
use such interim rates and charges until such time as new rates are established
pursuant to a final and effective Commission order or more favorable rates are
included in a final approved interconnection agreement between SWBT and another
carrier. Such new rates shall be substituted in place of the interim rates
previously established when final and effective or available in a final approved
interconnection agreement. To the extent required by the Commission in the above
referenced docket, such interim rates shall be subject to true-up.
3.1.2 Subject to the terms and conditions of this Agreement,
Interconnection of the Parties' facilities and equipment pursuant to Sections
4.0, 5.0 and 6.0 for obtaining unbundled network elements, the transmission and
routing of Telephone Exchange Service traffic; and for Exchange Access traffic
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shall be established on or before the corresponding "Interconnection Activation
Date" shown for each such Metropolitan Exchange Area on Appendix DCO. Appendix
DCO may be revised and supplemented from time to time upon the mutual agreement
of the Parties to reflect the Interconnection of additional Metropolitan
Exchange Areas pursuant to Section 4.7 by modifying or updating the DCO
appendix.
3.2 RATES AND CHARGES -- GENERALLY
3.2.1 SWBT's prices for termination and transport of traffic,
interconnection, access to unbundled network elements (including operational
support systems), and ancillary services are based upon the forward looking long
run incremental cost and including an appropriate allocation of forward looking
joint and common costs, incurred by SWBT in providing the service. Prices are
set forth in the attached Appendices, and comport with the Act and the
Commission's decision in the permanent cost docket.
3.2.2 SWBT's wholesale discounts for resale services, set forth in the
attached Appendices, are calculated in accordance with the standards set forth
in the Act.
3.2.3 Where any request for services or elements under this Agreement
entails the modification of existing facilities; where such request cannot be
met by the offerings specified in this Agreement; where such a request entails a
higher or lower level of quality than SWBT historically provided to itself; or
where this Agreement and incorporated Appendices do not establish a price to
recover the development, implementation, or other costs of meeting the request;
the Bona Fide Request detailed in this document shall apply.
4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2)
4.1 Scope
This Section, 4.0, describes the physical architecture for
Interconnection of the Parties' facilities and equipment for the transmission
and routing of Telephone Exchange Service traffic and Exchange Access traffic
pursuant to Section 251(c)(2) of the Act. Such Interconnections shall be equal
in quality to that provided by the Parties to themselves or to any subsidiary,
affiliate or Third Party. For purposes of this Section 4.0, "equal in quality"
refers to functionally equivalent interfaces specifications, provisioning and
installation intervals, and maintenance, testing and repair, and quality of
performance. Appendix ITR prescribes the specific trunk groups (and traffic
routing parameters) which will be configured over the physical connections
described in this Section (4.0 ) to provide the facilities for the transmission
and routing of Telephone Exchange Service traffic (as described in Section 5.0),
Exchange Access traffic (as described in Section 6.0), LSV/BLI traffic (as
described in Section 7.2), and E911/911 traffic (as described in Section 7.4).
Use of this physical connection shall be limited to the trunk groups described
in Appendix ITR.
4.2 Interconnection Coverage
The Parties shall provide for interoperation of their networks and
shall interconnect their facilities as stated below:
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1. CLEC shall interconnect with SWBT's facilities as follows:
a. In each SWBT exchange area in which CLEC chooses to offer local
exchange service, CLEC, at a minimum, will interconnect its
network facilities to (a) one access tandem and (b) to each SWBT
local tandem(s) or to each SWBT end office(s) (EOs). If CLEC
desires a single point for interconnection within a LATA, CLEC
agrees to purchase dedicated or common transport from SWBT to any
other exchange within a LATA requested by CLEC, or CLEC may
self-provision, or use a third party's facilities. The SWBT EOs
and tandems through which CLEC will terminate its traffic will be
called SWBT Interconnection Wire Centers and are to be identified
in Appendix DCO attached hereto and incorporated herein by
reference. As CLEC initiates exchange service operations in
additional SWBT exchange areas, SWBT and CLEC shall agree upon
additional SWBT Interconnection Wire Centers in each new exchange
area. CLEC agrees that if SWBT establishes additional local
tandems in an exchange area within which CLEC offers local
exchange service, CLEC will interconnect to the additional
tandems.
b. Interconnection to a SWBT local tandem(s) will provide CLEC local
access to the SWBT end offices and NXXs which subtend that
tandem(s), and to other Local Exchange Carriers (LECs) (subject
to Section 7.3) which are connected to that tandem(s).
Interconnection to SWBT EO(s) will provide CLEC access only to
the NXXs served by that individual EO(s) to which CLEC
interconnects.
c. Interconnection to a SWBT access tandem will provide CLEC
interexchange access to SWBT, IXCs, LECs, and wireless providers
(subject to Section 7.3) which are connected to that tandem.
Where an access tandem also provides local tandem functions,
interconnection to a SWBT access tandem serving that exchange
will also provide CLEC access to SWBT's EOs with the same
functionality described in (b) above.
d. Where CLEC requires ancillary services (e.g., Directory
Assistance, Operator Assistance, 911/E911) additional
interconnection to SWBT's Interconnection Wire Center(s) or
special trunking will be required for interconnection to such
ancillary services.
SWBT shall interconnect with CLEC's facilities under terms and
conditions no less favorable than those identified in Section 4.2,
Paragraph 1, above.
4.3 Methods for Interconnection
Where the Parties interconnect, for the purpose of exchanging traffic
between networks, the Parties may use the following interconnection methods for
each Tandem and End Office identified in Appendix DCO making use of facilities
they own or lease from a third party.
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4.3.1 Physical Collocation Interconnection (PCI) is where CLEC
provides fiber cable and connects to its equipment located in the SWBT Wire
Center. CLEC owns and maintains CLEC's equipment.
4.3.2 Virtual Collocation Interconnection (VCI) is where CLEC
provides fiber cable to SWBT for connection to CLEC's designated basic
transmission equipment dedicated solely for CLEC's use, located in the SWBT
Interconnection Wire Center. Where space is not available for physical
collocation and space is available for virtual collocation and technical
limitations do not exist, CLEC and SWBT agree to negotiate in good faith, an
arrangement whereby CLEC shall be permitted to purchase transmission equipment
that SWBT will install, maintain, and repair at the request of CLEC. If CLEC
elects to remove such equipment it shall pay SWBT the cost of removal.
4.3.3 SONET-Based Interconnection (SBI) is where CLEC provides
fiber cable to SWBT for connection to SWBT-designated basic transmission
equipment located at the SIWC and dedicated solely for CLEC's use. SWBT owns and
maintains the basic transmission equipment. This option shall be consistent with
SWBT's SBI tariff as modified, if necessary, to comport with the ACT and FCC
Order.
4.3.4 Leased Facility Interconnection (LFI) - where facilities
exist, either Party may lease facilities from the other Party as mutually
agreed.
4.3.5 Mid-span Fiber Interconnection - Where the Parties agree
to interconnect through SONET technology, using a mutually agreeable originating
line terminating multiplexer fiber optic terminal (FOT) details of this
architecture are addressed in Appendix MSFI. This interconnection arrangement is
limited to interconnecting trunks.
4.3.6 The Parties may agree to utilize another Interconnection
Method as may be determined to be technically feasible in the future.
4.4 Physical Architecture
4.4.1 Using one or more of the Interconnection Methods
described in Section 4.3 above, the Parties will agree on a physical
architecture plan. This plan will be documented within Appendix DCO. The Parties
agree to deploy a physical architecture plan per Metropolitan Serving Area which
is mutually acceptable. Two architecture arrangements, End Span Meet (or End
Point Meet) and Mid-Span Meet (or Mid-Point Meet), are discussed below.
Additional physical architectures, as yet undefined, may evolve during the term
of this Agreement. These future, as yet undefined architectures, can be deployed
if mutually agreed upon.
4.4.2 As set forth in Appendix ITR, the Parties shall
initially configure all Traffic Exchange Trunk groups as two-way, but utilized
as one-way as described herein. The Parties agree that two-way trunking is the
desired architecture and shall use their best efforts to mutually agree on a
schedule for conversion to utilization of two-way trunks but not to exceed
twelve (12) months from the Interconnection Activation Date.
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a. End Point Meet
Using the "End Point Meet" architecture, the Parties will
establish transport facilities from their own Central Office(s) to the other
party's Central Office(s) utilizing any method of interconnection described in
Section 4.3. Unless otherwise mutually agreed upon, each Party will use its own
or third party transport facilities to provide trunking as set forth in Exhibit
B. The Parties will be responsible for the appropriate sizing of the trunk
groups. Operation and maintenance of the transport facilities will be the
responsibility of the Party providing them.
If initially deployed as an End-Span Architecture, the
deployment architecture may be migrated or groomed, upon mutual agreement, to a
Mid-Span Meet architecture.
b. Mid-Span Meet
Using the "Mid-Span Meet" architecture, the Parties will agree
upon a Network Interconnection Point (NIP). The NIP functions as a demarcation
point for each Party. Each Party is responsible to provide the necessary
trunking to its side of the NIP utilizing any method of interconnection
described in Section 4.3 above. The Parties are mutually responsible for the
appropriate sizing of the composite trunking facility. The Party providing the
facility section is responsible for the operation and maintenance of the
transport facility to the NIP.
A second NIP may be established, when mutually agreed upon, to
eliminate a "single point of failure". The establishment of the second NIP may
not require additional or increased trunking or facilities of either Party.
Trunking from the initial NIP will be groomed or augmented to the second NIP
upon mutual agreement.
When required, based on guidelines established pursuant to
Appendix ITR, either Party may trunk directly to the other Party's EO. If the
Party is virtually or physically collocated at the EO, then that collocation
will be designated as a NIP. This collocation will be used for the transport of
direct EO trunking, in addition to other uses. The collocated Party is
responsible for the appropriate sizing, operation, and maintenance of the
transport facility which will carry mutual traffic. In the instance where the
Party is not collocated, the EO trunk group will be handed off at the original
NIP and both Parties will be economically and technically responsible for the
transport facility on their side of that NIP.
Unless otherwise mutually agreed upon, when Mid- Span Meet
architecture has been deployed, it will remain as the architecture of choice
during the term of this Agreement.
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4.5 Technical Specifications
4.5.1 CLEC and SWBT shall work cooperatively to install and
maintain a reliable network. CLEC and SWBT shall exchange appropriate
information (e.g., maintenance contact numbers, network information, information
required to comply with law enforcement and other security agencies of the
Government and such other information as the Parties shall mutually agree) to
achieve this desired reliability.
4.5.2 CLEC and SWBT shall work cooperatively to apply sound
network management principles by invoking network management controls to
alleviate or to prevent congestion.
4.5.3 Technical Publications that describes the practices,
procedures, specifications and interfaces generally utilized by SWBT are
identified herein. Technical Publications referred to herein assist the Parties
in meeting their respective Interconnection responsibilities. Copies of the
publications listed in this Agreement have been provided to CLEC by SWBT.
4.6 Interconnection in Additional Metropolitan Exchange Areas
4.6.1 If CLEC decides to offer Telephone Exchange Services in
any other Exchange Areas in which SWBT also offers Telephone Exchange Services,
CLEC shall provide written notice to SWBT of the need to establish
Interconnection in such Exchange Areas pursuant to this Agreement.
4.6.2 The notice provided in Section 4.6.1 shall include (i)
the initial Routing Point CLEC has designated in the Exchange Area; (ii) CLEC's
requested Interconnection Activation Date; and (iii) a non-binding forecast of
CLEC's trunking requirements.
4.6.3 Unless otherwise agreed by the Parties, the Parties
shall designate the Wire Center that CLEC has identified as its initial Routing
Point in the Exchange Area as the CLEC Interconnection Wire Center (CIWC) in
that Exchange Area and shall mutually designate a SWBT Tandem Office Wire
Center(s) within the Exchange Area as the SIWC(s) in that Exchange Area.
4.6.4 Unless otherwise agreed by the Parties, the
Interconnection Activation Date in each new Exchange Area shall be targeted at
ninety (90) days but in no event more than 150 days following the date on which
CLEC delivered notice to SWBT of the need to establish Interconnection pursuant
to Section 4.6.1. Within ten (10) business days of SWBT's receipt of CLEC's
notice, SWBT and CLEC shall confirm the respective Wire Centers to be
Interconnected and the Interconnection Activation Date for the new Exchange Area
by attaching a supplementary schedule to Appendix DCO.
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5.0 TRANSMISSION AND ROUTING OF TELEPHONE EXCHANGE SERVICE TRAFFIC PURSUANT TO
SECTION 251(c)(2)
5.1 Scope of Traffic
This Section (5.0) prescribes parameters for Traffic Exchange trunk
groups the Parties shall establish over the Interconnections specified in
Section 4.0. The parties shall employ the Traffic Exchange trunk groups
specified, in this Section (5.0) and in Appendix ITR, for the transmission and
routing of all Local and IntraLATA Toll Traffic between the Parties.
5.1.1 For purposes of compensation under this Agreement, the
telecommunications traffic traded between CLEC and SWBT will be classified as
either Local Traffic, Transit Traffic, Optional Calling Area Traffic, IntraLATA
Interexchange Traffic, InterLATA Interexchange Traffic, FGA Traffic, or Wireless
Traffic. The compensation arrangement for the joint provision of Feature Group A
(FGA) Services is covered in Appendix FGA, attached hereto and incorporated
herein by reference. The compensation arrangement for the joint provision of
Wireless Traffic is covered in Appendix Wireless, attached hereto and
incorporated herein by reference. The Parties agree that, notwithstanding the
classification of traffic under this Agreement, either Party is free, within the
terms of this Agreement to define its own "local" calling area(s) for purposes
of its provision of Telecommunications Services to its end users.
5.1.2 Calls originated by one Party's end user and terminated
to the other Party's end user will be classified as "Local Traffic" under this
Agreement if: (i) the call originates and terminates in the same SWBT exchange
area; or (ii) originates and terminates within different SWBT Exchanges that
share a common mandatory local calling area, e.g., mandatory Extended Area
Service (EAS), mandatory Extended Local Calling Service (ELCS), or other like
types of mandatory expanded local calling scopes.
5.2 Responsibilities of the Parties
5.2.1 Each Party will be responsible for the accuracy and
completeness and quality of its data as submitted to the respective Parties
involved.
5.2.2 Each Party will include in the information transmitted
to the other, for each call being terminated on the other's network (where
available), the originating Calling Party Number (CPN) or Automatic Number
Identification (ANI).
5.2.3 The type of originating calling number transmitted
depends on the protocol of the trunk signaling used for interconnection.
Traditional toll protocol will be used with Multi-Frequency (MF) signaling, and
ANI will be sent from the originating Party's end office switch to the
terminating Party's tandem or end office switch.
5.2.4 Where one Party is passing CPN but the other party is
not properly receiving information, the Parties will cooperate to rate the
traffic correctly.
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5.3 Reciprocal Compensation for Termination of Local Traffic
5.3.1 The Compensation set forth below will apply to all Local
Traffic as defined in Section 5.1.2 of this Agreement.
5.3.2 Applicability of Rates
i) The rates, terms, conditions in this Section
5.3 apply only to the termination of Local
Traffic, except as explicitly noted.
ii) The Parties agree to compensate each other
for the termination of Local Traffic on a
minute of use (MOU) basis.
5.3.3 Rate Elements
5.3.3.1. A Tandem rate element is applicable to
Tandem Routed Local Traffic on a terminating local MOU basis and includes
compensation for the following sub-elements.
i) Tandem Switching - compensation for the use
of tandem switching functions.
ii) Tandem Transport - compensation for the
transmission facilities between the local
tandem and the end offices subtending that
tandem.
iii) End Office Switching - compensation for the
local EO office switching and line
termination functions necessary to complete
the transmission.
5.3.3.2 An End Office rate element applies to
direct-routed Local Traffic, on a terminating local MOU basis, and includes
compensation for End Office Switching. This includes direct-routed Local Traffic
that terminates to offices that have combined tandem and End Office functions.
5.3.3.3 De minimis Provision. The first nine months
of this agreement shall be a de minimis period. For purposes of Section 5.3.3
there shall be a monthly threshold de minimis level of Local Traffic below which
no compensation will be paid by the Parties for termination of Local Traffic,
unless the net of such terminating traffic results in Minutes of Use (MOUs) in
excess of the threshold. Such de minimis level shall be 105% determined by
comparing each Party's monthly MOU calculation. Such minutes of use shall be
measured in seconds by call type and accumulated monthly and then rounded to the
nearest one minute increment for billing purposes. This provision applies to
Local Traffic only, which includes calls originated and terminated to/from
mandatory local calling areas, but does not include Transit or CMRS Traffic. The
Parties acknowledge and agree that any compensation which might accrue in an
amount less than required by this Section shall be considered de minimis,
however, the Parties shall exchange all records required under the Agreement
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even when the traffic exchanged between the Parties is de minimis. Whenever the
traffic exchanged between the parties exceeds the 105% de minimis level, in any
given month, the Parties shall xxxx or settle amongst themselves for all MOUs.
5.3.4 Local Traffic Interconnection Rates
Prices
------
Tandem Switching $0.002822/MOU
----------------
Tandem Transport
----------------
Common
------
Zone A $0.000621/MOU
Zone B $0.000393/MOU
Zone C $0.000519/MOU
End Office Switching
Zone A $0.007598/MOU
Zone B $0.005965/MOU
Zone C $0.005775/MOU
5.4 Reciprocal Compensation for Transit Traffic
5.4.1 Transit Traffic allows one Party to send Local traffic
to a third party network through the other Party's tandem. A Transit Traffic
rate element applies to all MOUs between a Party and third party networks that
transit the other Party's tandem switch. The originating Party is responsible
for the appropriate rates unless otherwise specified. The Transit Traffic rate
element is only applicable when calls do not originate with (or terminate to)
the transit Party's end user.
Prices
------
Local Transit $0.003443/MOU
All other traffic which transits a tandem shall be
treated as meet-point billing traffic unless otherwise agreed.
Each Party represents that it shall not send local
traffic to the other Party that is destined for the network of a third party
unless and until such Party has the authority to exchange traffic with the third
party.
5.5 Reciprocal Compensation for Termination of IntraLATA
Interexchange Traffic
5.5.1 For intrastate intraLATA interexchange service
traffic, compensation for termination of intercompany traffic will be at
terminating access rates for Message Telephone Service (MTS) and originating
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access rates for 800 Service, including the Carrier Common Line (CCL) charge, as
set forth in each party's Intrastate Access Service Tariff. For interstate
intraLATA service, compensation for termination of intercompany traffic will be
at terminating access rates for MTS and originating access rates for 800 Service
including the CCL charge, as set forth in each party's interstate Access Service
Tariff.
5.6 Compensation for Origination and Termination of
Switched Access Service Traffic to or From an IXC
(Meet-Point Billing (MPB) Arrangements)
5.6.1 For interstate, interLATA traffic, terminating
compensation will be at access rates as set forth in each Party's own applicable
access tariffs.
5.6.2 The Parties will establish MPB arrangements, as
mutually agreed upon, in order
to provide Switched Access Services to IXCs via SWBT's access tandem switch in
accordance with the MPB guidelines adopted by and contained in the Ordering and
Billing Forum's MECOD and MECAB documents. CLEC's Meet Points with SWBT, and
SWBT's Meet Points with CLEC shall be those identified in Appendix DCO and any
supplements thereto.
5.6.3 Billing to IXCs for the Switched Exchange
Access Services jointly provided by the Parties via Meet-Point Billing
arrangement shall be according to the multiple xxxx/single tariff method. As
described in the MECAB document, each Party will render a xxxx in accordance
with its own tariff for that portion of the service it provides. For the purpose
of this Agreement, CLEC is the Initial Billing Company (IBC) and SWBT is the
Subsequent Billing Company (SBC). The assignment of revenues, by rate element,
and the Meet-Point Billing percentages applicable to this Agreement are set
forth in the Meet Point Billing Arrangement Revenue Assignment Schedule. The
actual rate values for each element shall be the rates contained in that Party's
own applicable access tariffs.
5.6.4 The Parties will maintain provisions in their
respective federal and state
access tariffs, or provisions within the National Exchange Carrier Association
(NECA) Tariff No. 4, or any successor tariff, sufficient to reflect this MPB
arrangement, including MPB percentages.
5.6.5 As detailed in the MECAB document, the Parties
will, in accordance with accepted time intervals exchange all information
necessary to accurately, reliably and promptly xxxx third Parties for Switched
Access Services traffic jointly handled by the Parties via the Meet Point
Arrangement. Each Party reserves the right to charge the other Party for the
recording/processing functions it performs pursuant to Appendix Recording or
nondiscriminatory terms and conditions. Information shall be exchanged in
Exchange Message Record (EMR) format, on magnetic medium or via a mutually
acceptable electronic file transfer protocol.
5.6.6 Initially, billing to IXCs for the Switched
Access Services jointly provided by the parties via the MPB arrangement will be
according to the multiple xxxx single tariff method, as described in the MECAB
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document. Each Party will render a xxxx to the IXC in accordance with its own
tariff for that portion of the service it provides. Each Party will xxxx its own
network access service rates to the IXC. The residual interconnection charge
(RIC), if any, will be billed by the Party providing the End Office function.
5.6.7 Meet-Point Billing shall also apply to all
jointly provided MOU traffic bearing the 900, 800, and 888 NPAs or any other
non-geographic NPAs which may likewise be designated for such traffic in the
future where the responsible party is an IXC. For 800 database queries performed
by SWBT, SWBT will charge the provider of the Signaling Service Point for the
database query in accordance with standard industry practices and at rates
included in the attached Appendices.
5.6.8 Each Party shall coordinate and exchange the
billing account reference ("BAR") and billing account cross reference ("BACR")
numbers for the Meet Point Billing service. Each Party shall notify the other if
the level of billing or other BAR/BACR elements change, resulting in a new
BAR/BACR number.
5.6.9 Each Party will provide the other with the
Exchange Access detailed usage data within thirty (30) days of the end of the
billing period. SWBT will perform assembly and editing, messages processing and
provision of Access Usage Records in accordance with Appendix Recording, which
is attached hereto and incorporated herein by this reference. Each Party will
provide to the other the Exchange Access Summary Usage Records within ten (10)
working days after the date that a xxxx is rendered to the IXC by the initial
Party. The Parties reserve the right to charge for such data and will negotiate
mutual and reciprocal charges.
5.6.10 Errors in information transmission and/or
billing may be discovered by CLEC, the IXC or SWBT. Both SWBT and CLEC agree to
provide the other Party with notification of any discovered errors within two
(2) business days of the discovery.
5.6.11 In the event of a loss of data, both Parties
shall cooperate to reconstruct the lost data within sixty (60) days of
notification and if such reconstruction is not possible, shall accept a
reasonable estimate of the lost data, based upon an extrapolation from no more
than three (3) to twelve (12) months of prior usage data, if available.
5.7 Billing Arrangements for Compensation for Termination
of IntraLATA, Local, Transit, and Optional Calling Area
Traffic
5.7.1 Other than for traffic described in Section 5.6
above, each Party shall deliver monthly settlement statements for terminating
the other Party's traffic based on a mutually agreed schedule as follows:
For billing purposes, each Party shall, unless otherwise agreed, pass the
originating call record for the recording, record exchange and billing of
traffic using the guidelines as set forth in the Technical Exhibit Settlement
Procedures (TESP), provided by SWBT to CLEC.
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(a) Where CLEC has direct/high usage trunks to a SWBT end office with
overflow trunking through a SWBT tandem, billing for the Tandem Traffic
will be calculated as follows:
total originating MOUs to SWBT's end office recorded by CLEC
less direct end office terminating MOUs recorded by SWBT
equals total MOUs to be compensated as Tandem traffic
(b) Where CLEC has direct/high usage trunks to a third party with
overflow trunking through a SWBT tandem, CLEC must differentiate the
originating MOU records for the Parties to ascertain how many MOUs should
be compensated as Transit Traffic. If CLEC is unable to differentiate the
originating MOU records, the Parties shall mutually agree upon a surrogate
method for calculating the basis for Transit Traffic charges owed to SWBT.
5.7.1.1 On a monthly basis, each Party will record its
originating MOU including identification of the originating and terminating NXX
for all intercompany calls.
5.7.1.2 Each Party will transmit the summarized originating MOU
from Section 5.7.1.1 above to the transiting and/or terminating Party for
subsequent monthly intercompany settlement billing.
5.7.1.3 Bills rendered by either Party will be paid within 30
days of receipt subject to subsequent audit verification.
5.7.1.4 Detailed technical descriptions and requirements for the
recording, record exchange and billing of traffic are included in the Technical
Exhibit Settlement Procedures (TESP), a copy of which has been provided to CLEC
by SWBT.
5.7.2 MOUs for the rates contained herein will be measured in seconds by
call type, accumulated each billing period into an aggregate number of seconds
and rounded to the nearest one minute increment for billing purposes in
accordance with 5.3.3.3.
5.7.3 Each Party will multiply the tandem routed and end office routed
terminating MOUs by the appropriate rate contained in the attached Appendices to
determine the total monthly billing to each Party.
5.7.4 If the percentage of calls passed by either Party with CPN is greater
than ninety percent (90%), all calls exchanged without CPN information will be
billed as either Local Traffic or IntraLATA Toll Traffic in direct proportion to
the minutes of use (MOU) of calls exchanged with CPN information. If the
percentage of calls passed with CPN is less than 90%, all calls passed without
CPN will be billed as IntraLATA Toll Traffic.
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6.0 TRANSMISSION AND ROUTING OF EXCHANGE ACCESS TRAFFIC PURSUANT TO
251(c)(2)
6.1 Scope of Traffic
Section 6.0 prescribes parameters for certain trunk groups ("Access
Toll Connecting Trunks") to be established over the Interconnections specified
in Section 4.0 for the transmission and routing of Exchange Access traffic
between CLEC Telephone Exchange Service end users and IXCs via a SWBT access
tandem.
6.2 Trunk Group Architecture and Traffic Routing
6.2.1 The Parties shall, as mutually agreed upon, jointly
establish Access Toll Connecting Trunks as described in Appendix ITR, by which
they will jointly provide tandem-transported Switched Exchange Access Services
to IXCs to enable SWBT and CLEC end users to originate and receive traffic
to/from such IXCs.
6.2.2 Access Toll Connecting Trunks shall be used solely for
the transmission and routing of Switched Exchange Access to allow CLEC or SWBT
end users to originate and terminate traffic to/from any IXCs which is connected
to the other's Access Tandem. In addition, the trunks shall be used to allow
CLEC's or SWBT's end users to connect to, or be connected to, the 800 Services
of any Telecommunications Carrier connected to the other Party's Access Tandem.
7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 Information Services Traffic
7.1.1 At such time as the Parties shall agree to route
intraLATA Information Services Traffic to one another, they shall agree to
exchange rating and billing information to effectively allow the Parties to xxxx
their end users and to charge reciprocal rates.
7.2 Line Status Verification (LSV)/Busy Line Interrupt (BLI)
Traffic
7.2.1 Each Party's operator bureau shall accept LSV and BLI
inquiries from the operator bureau of the other Party in order to allow
transparent provision of LSV/BLI Traffic between the Parties' networks. Only one
LSV attempt will be made per end user operator bureau call, and the applicable
charge shall apply whether or not the line is busy at the time of verification
and if the called party releases the line. Only one BLI attempt will be made per
end user operator telephone call, and the applicable charge shall apply whether
or not the called party releases the line.
7.2.2 Each Party shall route LSV/BLI Traffic inquiries between
the Parties' respective operator bureaus over trunks described in Appendix ITR.
7.2.3 Each Party shall compensate the other Party for LSV/BLI
Traffic as set forth in the Appendix OS.
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7.3 Wireless Traffic
7.3.1 Appendix Wireless sets forth the terms and conditions
under which the Parties will distribute revenue from their joint provision of
Wireless Interconnection Service for mobile to landline traffic terminating
through the Parties' respective wireline switching networks within a LATA. If
either Party enters into an interconnection agreement with a CMRS provider,
Appendix Wireless shall no longer be applicable between the Parties with respect
to such CMRS providers.
7.3.2 SWBT will apply the Local Transit Traffic rate to CLEC
for calls that originate on CLEC's network and are sent to SWBT for termination
to a CMRS Provider as long as such Traffic can be identified as wireless
traffic. CLEC will apply the Local Transit Traffic rate to SWBT for such calls
that originate on SWBT's network and are sent through CLEC's network for
termination on a CMRS Provider's network. Each Party shall be responsible for
interconnection agreements with CMRS providers for terminating compensation
regarding traffic originating on the Party's network and terminating on the CMRS
provider's network. The originating Party agrees to indemnify the transiting
Party for any claims of compensation that may be made by the CMRS provider
against the transiting Party regarding compensation for such traffic.
7.3.3 When traffic is originated by either Party to a CMRS
Provider, and the traffic cannot be specifically identified as wireless traffic
for purposes of compensation between SWBT and CLEC, the traffic will be treated,
in comport with its origination and termination, as either Local or Access and
the appropriate compensation rate will apply.
7.4 911 Service
7.4.1 Pursuant to Section 271(c)(2)(B)(vii) of the Act, SWBT
will make nondiscriminatory access to 911 service available under the terms and
conditions of Appendix 911, attached hereto and incorporated by reference.
7.4.2 CLEC shall route 911 traffic over trunks as described in
Appendix ITR.
8.0 SIGNALING
The SWBT signaling publications that describe the practices, procedures
and specifications generally utilized by SWBT for signaling purposes and are
listed in Appendix TP which is attached hereto and incorporated herein. Copies
of these publications have been provided to CLEC.
8.1 The Parties will cooperate on the exchange of Transactional
Capabilities Application Part (TCAP) messages to facilitate interoperability of
CCS-based features between their respective networks, including all CLASS
features and functions, to the extent each Party offers such features and
functions to its end users. All CCS signaling parameters will be provided
including, without limitation, calling party number (CPN), originating line
information (OLI), calling party category and charge number.
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9.0 NUMBERING
9.1 Nothing in this Agreement shall be construed to limit or otherwise
adversely impact in any manner either Party's right to employ or to request and
be assigned any NANP number resources including, but not limited to, central
office (NXX) codes pursuant to the Central Office Code Assignment Guidelines1,
or to establish, by tariff or otherwise, Exchanges and Rating Points
corresponding to such NXX codes. Each Party is responsible for administering the
NXX codes assigned to it.
9.2 At a minimum, in those Exchange Areas where CLEC intends to provide
local exchange service, CLEC shall obtain a separate NXX code for each SWBT
exchange wherein CLEC intends to offer service to end users. This will enable
CLEC and SWBT to identify the jurisdictional nature of traffic for intercompany
compensation until such time as both Parties have implemented billing and
routing capabilities to determine traffic jurisdiction on a basis other than NXX
codes.
9.3 Each Party agrees to make available to the other, up-to-date
listings of its own assigned NPA-NXX codes, along with associated Rating Points
and Exchanges.
9.4 To the extent SWBT serves as Central Office Code Administrator for
a given region, SWBT will work with CLEC in a neutral and nondiscriminatory
manner, consistent with regulatory requirements, in regard to CLEC's requests
for assignment of central office code(s) (NXX) consistent with the Bellcore (or
the succeeding organization assuming this function) Central Office Code
Assignment Guidelines.
9.5 Each Party is responsible to program and update its own switches
and network systems to recognize and route traffic to the other Party's assigned
NXX codes at all times. Neither Party shall impose fees or charges on the other
Party for such required programming and updating activities.
9.6 Each Party is responsible to input required data into the Routing
Data Base Systems (RDBS) and into the Bellcore Rating Administrative Data
Systems (BRADS) or other appropriate system(s) necessary to update the Local
Exchange Routing Guide (LERG), unless negotiated otherwise.
9.7 Neither Party is responsible for notifying the other Parties' end
users of any changes in dialing arrangements, including those due to NPA
exhaust, unless otherwise ordered by the Commission, the FCC, or a court.
9.8 NXX Migration
Where either Party has activated an entire NXX for a single end user,
or activated more than half of an NXX for a single end user with the remaining
numbers in that NXX either reserved for future use or otherwise unused, if such
------------------
1 Last published by the Industry Numbering Committee ("INC") as
INC 00-0000-000, Revision 4/7/95, formerly ICCF 00-0000-000.
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end user chooses to receive service from the other Party, the first Party shall
cooperate with the second Party to have the entire NXX reassigned in the LERG
(and associated industry databases, routing tables, etc.) to an End Office
operated by the second Party. Such transfer will require development of a
transition process, to minimize impact on the Network and on the end user(s)'
service and will be subject to appropriate industry lead times (currently 45
days) for movements of NXXs from one switch to another. The Party to whom the
NXX is migrated will pay NXX migration charges of $10,000 per NXX.
10.0 RESALE -- SECTIONS 251(c)(4) and 251(b)(1)
10.1 Availability of Retail Telecommunications Services
SWBT shall offer to CLEC for resale at wholesale rates its
Telecommunications Services, as described and in comport with Section 251(c)(4)
of the Act, pursuant to the terms and conditions of the Appendix, "Resale"
attached hereto, which are intended to comport with and be subject to the Act,
and incorporated herein by this reference.
10.2 Availability of Retail Telecommunication Services for Resale
CLEC shall make available its Telecommunications Services for resale at
rates to SWBT in accordance with Section 251(b)(1) of the Act.
11.0 UNBUNDLED NETWORK ELEMENTS - SECTIONS 251(c)(3), 271(c)(2)(B) (II),
(IV),(V),(VI),(X)
SWBT shall provide CLEC access to unbundled network elements for the
provision of a telecommunication service as described in Section 251(c)(3) of
the Act, pursuant to the terms and conditions of the Appendix, "UNE" which is
intended to be subjected to and in comport with the Act and the Commissions'
Orders, is attached hereto and incorporated herein by this reference.
12.0 NOTICE OF CHANGES -- SECTION 251(c)(5)
Nothing in this Agreement shall limit either Party's ability to
upgrade its network through the incorporation of new equipment, new software or
otherwise. If a Party makes a change in its network which it believes will
materially affect the interoperability of its network with the other Party, the
Party making the change shall provide at least ninety (90) days advance written
notice of such change to the other Party. Notwithstanding the foregoing, if
either Party establishes additional tandems in an exchange area in which the
other Party offers local exchange service, that Party will provide the other
Party with not less than 180 days' advance notification of same, and with
greater notification when practicable. Both Parties agree to coordinate
interconnection matters consistent with the requirements of the Americans with
Disabilities Act (42 U.S.C. 12101) and with Sections 255 and 256 of the Act. In
addition, the Parties will comply with the Network Disclosure rules adopted by
the FCC in CC Docket No. 96-98, Second Report and Order, as may be amended from
time to time. The Party upgrading its network shall be solely responsible for
the cost and effort of accommodating such changes in its own network.
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13.0 COLLOCATION -- SECTION 251(c)(6)
13.1 SWBT shall provide to CLEC facilities for the Physical Collocation
of equipment necessary for Interconnection (pursuant to Section 4.0 of this
Agreement), access to Network Elements on an unbundled basis, or once
collocated, connection to the networks of third parties, except that SWBT may
provide for Virtual Collocation to achieve the same ends if SWBT demonstrates to
the Commission that Physical Collocation is not practical for technical reasons
or because of space limitations, as provided in Section 251(c)(6) of the Act.
SWBT shall provide such Collocation for the purpose of network Interconnection
or access to Network Elements on an unbundled basis, except as otherwise
mutually agreed to in writing by the Parties or as required by the FCC or the
appropriate Commission, subject to this Agreement.
13.2 Except as otherwise ordered by the Commission or the FCC, or as
mutually agreed to by CLEC and SWBT, Physical or Virtual Collocation shall be
available at a Central Office Switch location classified as an end office
location, a serving wire center, a local, sector, or access tandem office
location, a remote node that serves as a rating point for special access or
switched access transport, or other locations as required by the Act or
Commissions' Order.
13.3 Attached hereto as Appendix Collocation, is the SWBT/CLEC
Collocation agreement which sets forth terms and conditions under which SWBT
shall provide physical collocation to CLEC in SWBT's Central central office in
Oklahoma City. Additionally, Appendix Collocation is a generic collocation
agreement which sets forth the terms and conditions under which SWBT shall
provide physical collocation to CLEC for all future collocation arrangements
between the Parties during the term of this Agreement. The prices and time
frames for any future collocations requested by CLEC will be determined on a
case-by-case basis. These variables are indicated by underlining (indicating
blanks) in the generic appendix.
14.0 NUMBER PORTABILITY -- SECTIONS 251(b)(2), 271(c)(2)(B)(xi)
The Parties agree to provide Interim Number Portability (INP) to one
another pursuant to terms and conditions outlined in Appendix PORT attached
hereto and incorporated herein.
15.0 DIALING PARITY -- SECTION 251(b)(3) and 271(e)(2)
15.1 The Parties shall provide Local Dialing Parity to each other as
required under Section 251(b)(3) of the Act.
15.2 SWBT shall provide IntraLATA Dialing Parity in accordance with
Section 271(e)(2) of the Act.
16.0 ACCESS TO RIGHTS-OF-WAY -- SECTION 251(b)(4)
To the extent required by Section 251(b)(4) of the Act, each Party
shall provide the other Party access to the poles, ducts, rights-of-way and
conduits (including riser conduit) it owns or controls in accordance with
Section 224 of the Act on the terms, conditions and prices set forth in Appendix
Poles, Conduits and Rights-of-Way to this Agreement.
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17.0 DATABASE ACCESS
In accordance with Section 271 of the Act and Appendices UNE, 800, LIDB
Validation, AIN, LIDB, CNAM, and OSS, SWBT shall provide CLEC with
nondiscriminatory access to databases and associated signaling necessary for
call routing and completion. When requesting access to databases not otherwise
provided for in this Agreement, or appropriate interfaces, regardless of whether
they constitute unbundled Network Elements, CLEC will use the Network Element
Bona Fide Request process.
18.0 COORDINATED SERVICE CALLS
18.1 Referral Announcement. The Party formerly providing service to an
end user shall provide a Basic Referral announcement, reciprocally and free of
charge on the abandoned telephone number. The announcement will state that the
called number has been disconnected or changed and will provide the end user's
new telephone number if it is listed.
(a) Basic Intercept Referral Announcements are to be provided
on residential numbers for the same period of time that a Party provides to its
own end users, but at a minimum, for thirty (30) days where facilities exist and
the threat of telephone number exhaustion is not imminent.
Basic Intercept Referral Announcements for a single line
business end user and the primary listed telephone number for DID and
"Centrex-type" end users, shall be available for a minimum of thirty (30) days
or the life of the White Pages directory, whichever is greater. If the threat of
telephone number exhaustion becomes imminent for a particular Central Office,
the service provider may reissue a disconnected number prior to the expiration
of the directory, for the same period of time that a Party provides to its own
end users, but no earlier than thirty (30) days after the disconnection of the
business telephone number.
18.2 Coordinated Repair Calls. The Parties will employ the
following procedures for handling misdirected repair calls:
(a) The Parties will inform their respective end users of the
correct telephone numbers to call to access their respective
repair bureaus.
(b) To the extent the correct provider can be determined,
misdirected repair calls will be referred to the proper
provider of local exchange service in a courteous manner, at
no charge, and the end user will be provided the correct
contact telephone number.
In responding to misdirected repair calls, neither Party shall
make disparaging remarks about each other, nor shall they use
these repair calls as the basis for internal referrals or to
solicit customers or to market services, nor shall they
initiate extraneous communications beyond the direct referral
to the correct repair telephone number.
(c) The Parties will provide their respective repair contact
numbers to one another on a reciprocal basis.
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19.0 OTHER SERVICES 271(c)(2)(vii), 271(c)(2)(B)(viii)
19.1 White Pages. In accordance with Section 271(c)(2)(B) of the Act,
SWBT will make nondiscriminatory access to White Pages service available under
the terms and conditions of the Appendix "WP", attached hereto and incorporated
by reference.
19.2 Calling Name Information. The Parties shall provide, on mutually
agreeable and reciprocal terms, each other with access to Calling Name
information of their respective end users whenever one Party initiates a query
from a Signaling System Point for such information associated with a call
terminating to an end user who subscribes to a calling name service.
19.3 Billing/Collecting/Remitting. The Parties will jointly agree to
terms and conditions for Billing, Collecting and Remitting for alternated billed
local message as described in the Appendix "BCR", attached hereto and
incorporated by reference.
19.4 911 Service. Pursuant to Section 271(c)(2)(B)(vii) of the Act,
SWBT will make nondiscriminatory access to 911 service available under the terms
and conditions of Appendix 911, attached hereto and incorporated by reference.
CLEC shall route 911 traffic over trunks as described in the Appendix "ITR".
19.5 Directory Assistance (DA). Pursuant to Section 271(c)(B)(vii) of
the Act, SWBT will provide nondiscriminatory access to DA services under the
terms and conditions identified in the Appendix "DA", which is attached hereto
and make a part hereof.
19.6 Direct Access (DIRECT). Pursuant to the Act and the Commissions'
Orders, SWBT will provide nondiscriminatory access to published subscriber
listing information contained in SWBT's Directory Assistance DA Database under
the terms and conditions identified in the Appendix, "DIRECT", which is attached
hereto and made a part hereof.
19.7 Operator Services. At CLEC's request, SWBT shall provide
nondiscriminatory access to Operator Services under the terms and conditions
identified in the Appendix "OS" which is attached hereto and make a part hereof.
19.8 Clearinghouse Services. To the extent requested by CLEC, SWBT
shall provide for the tracking of message revenues from certain messages to
facilitate the transfer of revenues between the billing company the earning
company through the Clearinghouse Services provided by SWBT pursuant to the
terms and conditions in the Appendix "CH", which is attached hereto and made a
part hereof.
19.9 Hosting. At CLEC's request, SWBT shall perform hosting
responsibilities for the provision of billable message data and/or access usage
data received from CLEC for distribution to the appropriate billing and/or
processing location or for delivery to CLEC of such data via SWBT's internal
network or the nationwide CMDS network pursuant to the Appendix "HOST", which is
attached hereto and made a part hereof.
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19.10 Recording. At CLEC's request, SWBT shall perform recording
functionality for CLEC pursuant to the Appendix "RECORDING", which is attached
hereto and made a part hereof. These functions associated with recording will
include assembly and editing, message processing and provision of Access Usage
Record (AURs). These records will be generated by SWBT and provided to
CLECwithin the time frame agreed upon between the companies.
19.11 Signaling System 7 Interconnection. At CLEC's request, SWBT shall
perform SS7 interconnection services for CLEC pursuant to the Appendix "SS7",
which is attached hereto and made a part hereof.
20.0 GENERAL RESPONSIBILITIES OF THE PARTIES
20.1 SWBT and CLEC shall each use their best efforts to meet the
Interconnection Activation Dates.
20.2 Each Party is individually responsible to provide facilities
within its network that are necessary for routing, transporting, measuring, and
billing traffic from the other Party's network and for delivering such traffic
to the other Party's network in the standard format compatible with SWBT's
network as referenced in Bellcore's BOC Notes on LEC Networks Practice No.
SR-TSV-002275, and to terminate the traffic it receives in that standard format
to the proper address on its network. The Parties are each solely responsible
for participation in and compliance with national network plans, including the
National Network Security Plan and the Emergency Preparedness Plan.
20.3 Each Party shall, unless otherwise agreed, adhere to the
requirements for the recording, record exchange, and billing of traffic using
the guidelines as set forth in the Technical Exhibit Settlement Procedures
(TESP), previously provided by SWBT to CLEC. Reference to this technical
publication is included in Appendix TP which is attached hereto and incorporated
herein by reference.
20.4 Neither Party shall use any service related to or use any of the
services or elements provided in this Agreement in any manner that interferes
with other persons in the use of their service, prevents other persons from
using their service, or otherwise impairs the quality of service to other
carriers or to either Party's end users, and either Party may discontinue or
refuse service, but only for so long as the other Party is violating this
provision. Upon such violation, either Party shall provide the other Party
notice of the violation at the earliest practicable time.
20.5 Each Party is solely responsible for the services it provides to
its end users and to other Telecommunications Carriers.
20.6 The Parties shall work cooperatively to minimize fraud associated
with third-number billed calls, calling card calls, and any other services
related to this Agreement.
20.7 At all times during the term of this Agreement, each Party shall
keep and maintain in force at each Party's expense all insurance required by law
(e.g. workers' compensation insurance) as well as general liability insurance
for personal injury or death to any one person, property damage resulting from
any one incident, automobile liability with coverage for bodily injury for
property damage. Upon request from the other Party, each Party shall provide to
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the other Party evidence of such insurance (which may be provided through a
program of self insurance, in which case bonds, letters of credit, or escrows
will be established in comport with mutual agreement).
20.8 In addition to its indemnity obligations under Section 26.0, each
Party shall provide, in its tariffs and contracts with its end users that relate
to any Telecommunications Service provided or contemplated under this Agreement,
that in no case shall such Party or any of its agents, contractors or others
retained by such parties be liable to any end user or third party for (i) any
Loss relating to or arising out of this Agreement, whether in contract or tort,
that exceeds the amount such Party would have charged the applicable end user
for the service(s) or function(s) that gave rise to such Loss, and (ii) any
Consequential Damages (as defined in Section 26.3 below).
20.9 Unless otherwise stated, each Party will render a monthly xxxx to
the other for service(s) provided hereunder. Remittance in full will be due
within thirty (30) days of that billing date. Interest shall apply on overdue
amounts (other than Disputed Amounts which are subject to Section 28.12) at the
rate specified in Section 28.12, unless otherwise specified in an applicable
tariff. Each Party reserves the right to net delinquent amounts against amounts
otherwise due the other.
20.10 SWBT is participating with the industry to develop standardized
methods through the OBF and shall implement ordering and billing
formats/processes consistent with industry guidelines as capabilities are
deployed. Where such guidelines are not available SWBT will provide CLEC with
information on its ordering and billing format/process and requirements at the
earliest practicable time.
21.0 EFFECTIVE DATE, TERM, AND TERMINATION
21.1 This Agreement shall be effective not later than ten (10) days
after approval by the Oklahoma Commission when it has determined that the
Agreement complies with Sections 251 and 252 of the Act ("Effective Date").
21.2 The terms of the Agreement will commence upon approval by the
Oklahoma Corporation Commission and will expire on August 1, 2000 (the "Term").
Absent the receipt by one Party of written notice from the other Party at least
sixty (60) days prior to the expiration of the Term to the effect that such
Party does not intend to extend the Term of this Agreement, this Agreement shall
automatically renew and remain in full force and effect on and after the
expiration of the Term until terminated by either Party pursuant to Section
21.4.
21.3 Either Party may terminate this Agreement in the event that the
other Party fails to perform a material obligation that disrupts the operation
of either Party's network and/or end user service and fails to cure such
material nonperformance within forty-five (45) days after written notice
thereof.
21.4 If pursuant to Section 21.2 this Agreement continues in full force
and effect after the expiration of the Term, either Party may terminate this
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Agreement one hundred eighty (180) days after delivering written notice to the
other Party of its intention to terminate this Agreement, subject to Section
21.5. Neither Party shall have any liability to the other Party for termination
of this Agreement pursuant to this Section 21.4 other than its obligations under
Section 21.5.
21.5 Upon termination or expiration of this Agreement in accordance
with this Section 21.0:
(a) each Party shall promptly pay all amounts (including
any late payment charges) owed under this Agreement;
and
(b) each Party 's indemnification obligations shall
survive.
Upon expiration or termination the Parties will negotiate a successor agreement;
during such period, each Party shall continue to perform its obligations and
provide the services described herein that are to be included in the successor
agreement until such time as the latter agreement becomes effective; provided
however, that if the Parties are unable to reach agreement within six (6) months
after termination or expiration of this Agreement, either Party has the right to
submit this matter to the Commission for resolution. Until a survivor agreement
is reached or the Commission resolves the matter, whichever is sooner, the
terms, conditions, rates, and charges stated herein will continue to apply,
subject to a true-up based on the Commission action, if any.
21.6 Except as specifically set forth in this Agreement, no remedy set
forth herein is intended to be exclusive and each and every remedy shall be
cumulative and in addition to any other rights or remedies now or hereafter
existing under applicable law or otherwise.
22.0 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR RECEIVES
ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, FUNCTIONS AND
PRODUCTS IT PROVIDES UNDER OR CONTEMPLATED BY THIS AGREEMENT AND THE PARTIES
DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A
PARTICULAR PURPOSE. ADDITIONALLY, NEITHER SWBT NOR CLEC ASSUMES RESPONSIBILITY
WITH REGARD TO THE CORRECTNESS OF DATA OR INFORMATION SUPPLIED BY THE OTHER WHEN
THIS DATA OR INFORMATION IS ACCESSED AND USED BY A THIRD PARTY.
23.0 SLAMMING
Each Party will abide by applicable state commission rules when
obtaining end user authorization to change an end user's local service provider
to itself and in assuming responsibility for any applicable charges. Failure to
obtain end user authorization prior to changing such end user's local service
provider shall be considered slamming. Only an end user can initiate a challenge
to a change in its local exchange telephone service. Each Party shall make
available proof of end user authorization upon request.
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24.0 SEVERABILITY
24.1 The Parties negotiated the services, arrangements,
Interconnection, terms and conditions of this Agreement by the Parties as a
total arrangement and are intended to be nonseverable, subject only to Section
24.2 of this Agreement.
24.2 In the event the Commission, the FCC, or a court rejects any
portion or determines that any provision of this Agreement is contrary to law,
or is invalid or unenforceable for any reason, the Parties shall continue to be
bound by the terms of this Agreement, insofar as possible, except for the
portion rejected or determined to be unlawful, invalid, or unenforceable. In
such event, the Parties shall negotiate in good faith to replace the rejected,
unlawful, invalid, or unenforceable provision and shall not discontinue service
to the other party during such period if to do so would disrupt existing service
being provided to an end user. Nothing in this Agreement shall be construed as
requiring or permitting either Party to contravene any mandatory requirement of
federal or state law, or any regulations or orders adopted pursuant to such law.
25.0 LIMITATION OF LIABILITY
25.1 Except for indemnity obligations under this Agreement, or except
as otherwise provided in specific appendices, each Party's liability to the
other Party for any Loss relating to or arising out of any negligent act or
omission in its performance under this Agreement, whether in contract or tort,
shall not exceed in total the amount SWBT or CLEC has to or would have charged
the other Party during the year of the negligent act or omission for the
affected service(s) or function(s) that were not performed or were otherwise
improperly performed. Provided however, in no event shall either Party's
liability to the other for any act or omission under this Agreement exceed the
total dollar amount of services provided to or received by the liable Party in
the contract year.
25.2 Except for Losses alleged or made by an end user of either Party,
or except as otherwise provided in specific appendices, in the case of any Loss
alleged or made by a third party arising under the negligence or willful
misconduct of both Parties, each Party shall bear, and its obligation under this
section shall be limited to, that portion (as mutually agreed to by the Parties)
of the resulting expense caused by its own negligence or willful misconduct or
that of its agents, servants, contractors, or others acting in aid or concert
with it.
25.3 In no event shall either Party have any liability whatsoever to
the end users of the other Party for claims arising from the provision of the
other Party's service to its end user, including claims for interruption of
service, quality of service or billing disputes.
25.4 In no event shall either Party have any liability whatsoever to
the other Party for any indirect, special, consequential, incidental, or
punitive damages, including but not limited to loss of anticipated profits or
revenues or other economic loss in connection with or arising from anything
said, omitted or done hereunder (collectively "Consequential Damages"), even if
the other Party has been advised of the possibility of such damages; provided
however, that the foregoing shall not limit a Party's obligation under this
Agreement to indemnify, defend and hold the other Party harmless against any
amounts payable to a third party for any Losses or Consequential Damages of such
third party.
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26.0 INDEMNIFICATION
26.1 In no event shall either Party have any liability whatsoever to
the end users of the other Party for claims arising from the provision of the
other Party's service to its end user, including claims for interruption of
service, quality of service or billing disputes.
26.2 In no event shall either Party have any liability whatsoever to
the other Party for any indirect, special, consequential, incidental, or
punitive damages, including but not limited to loss of anticipated profits or
revenues or other economic loss in connection with or arising from anything
said, omitted or done hereunder (collectively "Consequential Damages"), even if
the other Party has been advised of the possibility of such damages; provided
however, that the foregoing shall not limit a Party's obligation under this
Agreement to indemnify defend and hold the other Party harmless against any
amounts payable to a third party for any Losses or Consequential Damages of such
third party.
26.3 In the case of any Loss alleged or made by an end user of either
Party, the Party whose end user alleged or made such Loss (Indemnifying Party)
shall defend and indemnify the other Party (Indemnified Party) against any and
all such claims or Loss by its end users regardless of whether the underlying
service was provided or unbundled element was provisioned by the Indemnified
Party, unless the Loss was caused by the gross negligence or intentional
misconduct of the other (Indemnified) Party.
26.4 Each Party shall be indemnified, defended and held harmless by the
other Party against any Loss arising from a Party's use of services or elements
provided under this Agreement involving:
26.4.1 Tort claims, including claims for libel, slander,
invasion of privacy, or infringement of copyright arising from a Party's own
communications or the communications of its end users; or
26.4.2 Claims for patent, trademark, infringement or other
infringement or intellectual property rights, arising from the Party's use of
services or unbundled elements provided under this Agreement.
26.5 The Indemnifying Party agrees to defend any suit brought against
the Indemnified Party for any Loss identified in this Section or specific
appendices. The Indemnified Party agree to notify the Indemnifying promptly in
writing of any written claims, lawsuits or demands for which the Indemnifying
Party may be responsible under this Agreement. The Indemnified Party shall
cooperate in every reasonable way to facilitate defense or settlement. The
Indemnifying Party shall have the right to control and conduct the defense and
settlement of any action or claim subject to the consultation of the Indemnified
Party. The Indemnifying Party shall not be responsible for any settlement unless
the Indemnifying Party approved such settlement in advance and agrees to be
bound by the settlement agreement.
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27.0 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be filed with
the Commission and may thereafter be filed with the FCC. Each Party covenants
and agrees to fully support approval of this Agreement by the Commission or the
FCC under Section 252 of the Act without modification. Additionally, the Parties
agree that so long as SWBT fully implements the terms and conditions of this
Agreement, CLEC will not oppose SWBT's Section 271 (of the Act) application.
CLEC represents that it is, or intends to become, a provider of
Telephone Exchange Service to residential and business subscribers offered
exclusively over its own Telephone Exchange Service facilities or predominantly
over its own Telephone Exchange Service facilities in combination with the use
of unbundled Network Elements purchased from another entity and the resale of
the Telecommunications Services of other carriers.
28.0 MISCELLANEOUS
28.1 Authorization.
(a) SWBT is a corporation duly organized, validly existing and
in good standing under the laws of the State of Missouri and has full power and
authority to execute and deliver this Agreement and to perform the obligations
hereunder.
(b) CLEC is a corporation duly organized, validly existing and
in good standing under the laws of the State of Oklahoma and has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder.
28.2 Compliance and Certification.
28.2.1 Each Party shall comply with all federal, state, and
local laws, rules, and regulations applicable to its performance under this
Agreement.
28.2.2 Each Party warrants that it has obtained all necessary
state certification required in those states in which it has ordered services
from the other Party pursuant to this Agreement. Upon request by any state
governmental entity, each Party shall provide proof of certification.
28.2.3 Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this Agreement comply
with the Communications Law Enforcement Act (CALEA). Each Party shall indemnify
and hold the other Party harmless from any and all penalties imposed upon the
other Party for such noncompliance and shall at the non-compliant Party's sole
cost and expense, modify or replace any equipment, facilities or services
provided to the other Party under this Agreement to ensure that such equipment,
facilities and services fully comply with CALEA.
SWBT/FULLTEL COMMUNICATIONS, INC.
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28.3 Law Enforcement.
28.3.1 SWBT and CLEC shall handle law enforcement requests as
follows:
(a) Intercept Devices: Local and federal law enforcement agencies
periodically request information or assistance from local
telephone service providers. When either Party receives a
request associated with an end user of the other Party, it
shall refer such request to the Party that serves such end
user, unless the request directs the receiving Party to attach
a pen register, trap-and-trace or form of intercept on the
Party's facilities, in which case that Party shall comply with
any valid request.
(b) Subpoenas: If a Party receives a subpoena for information
concerning an end user the Party knows to be an end user of
the other Party, it shall refer the subpoena to the requesting
party with an indication that the other Party is the
responsible company, unless the subpoena requests records for
a period of time during which the Party was the end user's
service provider, in which case the Party will respond to any
valid request.
(c) Emergencies: If a Party receives a request from a law
enforcement agency for temporary number change, temporary
disconnect, or one-way denial of outbound calls for an end
user of the other Party by the receiving Party's switch, that
Party will comply with an valid emergency request. However,
neither Party shall be held liable for any claims or damages
arising from compliance with such requests on behalf of the
other Party's end user and the Party serving such end user
agrees to indemnify and hold the other Party harmless against
any and all such claims.
28.4 Independent Contractor. Each Party and each Party's contractor
shall be solely responsible for the withholding or payment of all applicable
federal, state and local income taxes, social security taxes and other payroll
taxes with respect to its employees, as well as any taxes, contributions or
other obligations imposed by applicable state unemployment or workers'
compensation acts. Each Party has sole authority and responsibility to hire,
fire and otherwise control its employees.
28.5 Force Majeure. Neither Party shall be liable for any delay or
failure in performance of any part of this Agreement from any cause beyond its
control and without its fault or negligence including, without limitation, acts
of nature, acts of civil or military authority, government regulations,
embargoes, epidemics, terrorist acts, riots, insurrections, fires, explosions,
earthquakes, nuclear accidents, floods, work stoppages, equipment failure, cable
cuts, power blackouts, volcanic action, other major environmental disturbances,
unusually severe weather conditions, inability to secure products or services of
other persons or transportation facilities or acts or omissions of
transportation carriers 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-for-day basis
SWBT/FULLTEL COMMUNICATIONS, INC.
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to the extent such Party's obligations related to the performance so interfered
with). The affected Party shall use its best efforts to avoid or remove the
cause of nonperformance and both Parties shall proceed to perform with dispatch
once the causes are removed or cease.
28.6 Confidentiality.
28.6.1 All information, including but not limited to
specifications, microfilm, photocopies, magnetic disks, magnetic tapes,
drawings, sketches, models, samples, tools, technical information, data,
employee records, maps, financial reports, and market data, (i) furnished by one
Party (the "Disclosing Party") to the other Party (the "Receiving Party")
dealing with customer-specific, facility-specific, or usage-specific
information, other than customer information communicated for the purpose of
publication or directory database inclusion, 911, call processing, billing or
settlement or as otherwise mutually agreed upon, or (ii) in written, graphic,
electromagnetic, or other tangible form and marked at the time of delivery as
"Confidential" or "Proprietary," or (iii) communicated orally and declared to
the Receiving Party at the time of delivery, or by written notice given to the
Receiving Party within ten (10) days after declaration to be "Confidential" or
"Proprietary" (collectively referred to as "Proprietary Information"), shall
remain the property of the Disclosing Party.
28.6.2 Upon request by the Disclosing Party, the Receiving
Party shall return all tangible copies of Proprietary Information, whether
written, graphic, or otherwise. In the event of the expiration or termination of
this Agreement for any reason whatsoever, each Party shall return to the other
Party or destroy all Proprietary Information and other documents, work papers
and other material (including all copies thereof) obtained from the other Party
in connection with this Agreement.
28.6.3 Each Party shall keep all the other Party's Proprietary
Information confidential in the same manner in which it keeps its own
Proprietary Information confidential, and shall use the other Party's
Proprietary Information only for performing the covenants contained in the
Agreement and shall disclose such Proprietary Information only to those
employees, contractors, agents or Affiliates who have a need to know. 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.
28.6.4 Unless otherwise agreed, the obligations of
confidentiality and nonuse set forth in the Agreement do not apply to such
Proprietary Information as:
(i) 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
(ii) is or becomes publicly known through no wrongful act
of the receiving Party; or
(iii) 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
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Page 38 of 45
(iv) 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 the Agreement and does not have
any direct or indirect access to the Proprietary
Information; or
(v) is disclosed to a third person by the disclosing
Party without similar restrictions on such third
person's rights; or
(vi) is approved for release by written authorization of
the disclosing Party; or
(vii) is required to be made public by the Receiving Party
pursuant to applicable law or regulation provided
that the receiving party shall provide the Disclosing
Party with written notice of such requirement as soon
as possible and prior to such disclosure. The
Disclosing Party may then either seek appropriate
protective relief from all or part of such
requirement or, if it fails to successfully do so, it
shall be deemed to have waived the Receiving Party's
compliance with Section 29.6 with respect to all or
part of such requirement. The Receiving Party shall
use all commercially reasonable efforts to cooperate
with the Disclosing Party in attempting to obtain any
protective relief which such Disclosing Party chooses
to obtain. Notwithstanding the foregoing, SWBT shall
be entitled to disclose confidential information on a
confidential basis to regulatory agencies upon
request for information as to SWBT's activities under
the Act.
28.6.5 Notwithstanding any other provision of this Agreement,
the Proprietary Information provisions of this Agreement shall apply to all
information furnished by either Party to the other in furtherance of the purpose
of this Agreement, even if furnished before the date of this Agreement.
28.6.6 Pursuant to Section 222(b) of the Act, both parties
agree to limit their use of Proprietary Information received from the other to
the permitted purposed identified in the Act.
28.7 Governing Law. For all claims under this Agreement that are based
upon issues within the jurisdiction (primary or otherwise) of the FCC, the
exclusive jurisdiction and remedy for all such claims shall be as provided for
by the FCC and the Act. For all claims under this Agreement that are based upon
issues within the jurisdiction (primary or otherwise) of the Commission, the
exclusive jurisdiction for all such claims shall be with such Commission, and
the exclusive remedy for such claims shall be as provided for by such
Commission. In all other respects, this Agreement shall be governed by the
domestic laws of the state of Oklahoma without reference to conflict of law
provisions.
28.8 Taxes.
28.8.1 Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local sales, use, excise,
gross receipts, transaction or similar taxes, fees, or surcharges (hereinafter
SWBT/FULLTEL COMMUNICATIONS, INC.
Page 39 of 45
"Tax") levied against or upon such purchasing party (or the providing Party when
such providing Party is permitted by applicable law to pass along to the
purchasing party such taxes, fees, or surcharges), except for any Tax on either
party's corporate existence, status, or income. Whenever possible, these amounts
shall be billed as a separate item on the invoice. To the extent a sale is
claimed to be for resale tax exemption, the purchasing party shall furnish the
providing party a proper resale tax exemption certificate as authorized or
required by statute or regulation by the jurisdiction providing said resale tax
exemption. Failure to timely provide said resale tax exemption certificate will
result in no exemption being available to the purchasing Party until such time
as the purchasing Party presents a valid certification. Failure to timely
provide said resale tax exemption certificate will result in no exemption being
available to the purchasing Party until such time as the purchasing Party
presents a valid certificate.
28.8.2 With respect to any purchase of services, facilities or
other arrangements, if any Tax is required or permitted by applicable law to be
collected from the purchasing party by the providing party, then (i) the
providing party shall xxxx the purchasing party for such Tax, (ii) the
purchasing party shall remit such Tax to the providing party and (iii) the
providing party shall remit such collected Tax to the applicable taxing
authority.
28.8.3 With respect to any purchase hereunder of services,
facilities or arrangements that are resold to a third party, if any Tax is
imposed by applicable law on the end user in connection with any such purchase,
then (i) the purchasing party shall be required to impose and/or collect such
Tax from the end user and (ii) the purchasing party shall remit such Tax to the
applicable taxing authority. The purchasing party agrees to indemnify and hold
harmless the providing party on an after-tax basis for any costs incurred by the
providing party as a result of actions taken by the applicable taxing authority
to collect the Tax from the providing party due to the failure of the purchasing
party to pay or collect and remit such tax to such authority.
28.8.4 If the providing party fails to collect any Tax as
required herein, then, as between the providing party and the purchasing party,
(i) the purchasing party shall remain liable for such uncollected Tax and (ii)
the providing party shall be liable for any penalty and interest assessed with
respect to such uncollected Tax by such authority. However, if the purchasing
party fails to pay any taxes properly billed, then, as between the providing
party and the purchasing party, the purchasing party will be solely responsible
for payment of the taxes, penalty and interest.
If the purchasing party fails to impose and/or collect any Tax
from end users as required herein, then, as between the providing party and the
purchasing party, the purchasing party shall remain liable for such uncollected
Tax and any interest and penalty assessed thereon with respect to the
uncollected Tax by the applicable taxing authority. With respect to any Tax that
the purchasing party has agreed to pay or impose on and/or collect from end
users, the purchasing party agrees to indemnify and hold harmless the providing
party on an after-tax basis for any costs incurred by the providing party as a
result of actions taken by the applicable taxing authority to collect the Tax
from the providing Party due to the failure of the purchasing party to pay or
collect and remit such Tax to such authority.
28.9 Non-Assignment. This Agreement shall be binding upon every
subsidiary of either Party that is engaged in providing Telephone Exchange and
Exchange Access services in any territory within which SWBT is an Incumbent
Local Exchange Carrier as of the date of this Agreement (the "SWBT Territory")
and shall continue to be binding upon all such entities regardless of any
SWBT/FULLTEL COMMUNICATIONS, INC.
Page 40 of 45
subsequent change in their ownership. Each Party covenants that, if it sells or
otherwise transfers to a third party its Telephone Exchange and Exchange Access
network facilities within the SWBT Territory, or any portion thereof, to a third
party, it will require as a condition of such transfer that the transferee agree
to be bound by this Agreement with respect to services provided over the
transferred facilities. Except as provided in this paragraph, neither Party may
assign or transfer (whether by operation of law or otherwise) this Agreement (or
any rights or obligations hereunder) to a third party without the prior written
consent of the other Party; provided that each Party may assign this Agreement
to a corporate Affiliate or an entity under its common control or an entity
acquiring all or substantially all of its assets or equity by providing prompt
written notice to the other Party of such assignment or transfer. The Parties
agree that such consent shall not be unreasonably withheld. Any attempted
assignment or transfer that is not permitted is void ab initio. Without limiting
the generality of the foregoing, this Agreement shall be binding upon and shall
inure to the benefit of the Parties' respective successors and assigns.
28.10 Non-Waiver. Failure of either Party to insist on performance of
any term or condition of this Agreement or to exercise any right or privilege
hereunder shall not be construed as a continuing or future waiver of such term,
condition, right or privilege.
28.11 Audits. Each Party to this Agreement will be responsible for the
accuracy and quality of its data as submitted to the respective Parties
involved. Where SS7 is deployed, each Party shall pass Calling Party Number
(CPN) information on each call carried over the Traffic Exchange trunks;
provided that so long as the percentage of calls passed with CPN is greater than
ninety percent (90%), all calls exchanged without CPN information shall be
billed as either Local Traffic or IntraLATA Toll Traffic in direct proportion to
the minutes of use of calls exchanged with CPN information. If the percentage of
calls passed with CPN is less than 90%, all calls passed without CPN shall be
billed as IntraLATA Toll Traffic.
Upon reasonable written notice and at its own expense, each
Party or its authorized representative (providing such authorized representative
does not have a conflict of interest related to other matters before one of the
Parties) shall have the right to conduct an audit of the other Party to give
assurances of compliance with the provisions of this Agreement; provided, that
neither Party may request more than two (2) such audits within any twelve-month
period. This includes on-site audits at the other Party's or the Party's vendor
locations. Each Party, whether or not in connection with an audit, shall
maintain reasonable records for a minimum of 24 months and provide the other
Party with reasonable access to such information as is necessary to determine
amounts receivable or payable under this Agreement. Each Party's right to access
information for audit purposes is limited to data not in excess of 24 months in
age.
28.12 Disputed Amounts.
28.12.1 No claims, under this Agreement or its Appendices,
shall be brought for disputed amounts more than twenty-four (24) months from the
date of occurrence which gives rise to the dispute. Under this Section 28.12, if
any portion of an amount due to a Party (the "Billing Party") under this
Agreement is subject to a bona fide dispute between the Parties, the Party
billed (the "Non-Paying Party") shall within sixty (60) days of its receipt of
the invoice containing such disputed amount give notice to the Billing Party of
the amounts it disputes ("Disputed Amounts") and include in such notice the
specific details and reasons for disputing each item. The Non-Paying Party shall
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Page 41 of 45
pay when due (i) all undisputed amounts to the Billing Party and (ii) all
Disputed Amounts to Billing Party.
28.12.2 If the Parties are unable to resolve the issues
related to the Disputed Amounts in the normal course of business within sixty
(60) days after delivery to the Billing Party of notice of the Disputed Amounts,
each of the Parties shall appoint a designated representative who has authority
to settle the dispute and who is at a higher level of management than the
persons with direct responsibility for administration of this Agreement. The
designated representatives shall meet as often as they reasonably deem necessary
in order to discuss the dispute and negotiate in good faith in an effort to
resolve such dispute.
28.12.3 If the Parties are unable to resolve issues related to
the Disputed Amounts within forty-five (45) days after the Parties' appointment
of designated representatives pursuant to Section 28.12.2, then either Party may
file a complaint with the Commission to resolve such issues or proceed with any
other remedy pursuant to law or equity. The Commission may direct release of any
or all funds (including any accrued interest) in the escrow account, plus
applicable late fees, to be paid to either Party.
28.12.4 The Parties agree that all negotiations pursuant to
this Section 28.12 shall remain confidential and shall be treated as compromise
and settlement negotiations for purposes of the Federal Rules of Evidence and
state rules of evidence.
28.12.5 Any undisputed amounts not paid when due shall accrue
interest from the date such amounts were due at the lesser of (i) one and
one-half percent (1 1/2%) per month or (ii) the highest rate of interest that
may be charged under applicable law.
28.13 Dispute Resolution.
28.13.1 No claims shall be brought for disputes arising under
this Agreement or its Appendices more than twenty-four (24) months from the date
of occurrence which gives rise to the dispute.
28.13.2 For disputes other than disputed amounts under this
Agreement or its Appendices, each Party shall appoint a designated
representative as set forth in Section 28.12.2 and if unable to resolve the
dispute, proceed as set forth in Section 28.12.3.
28.14 Notices. Any notice to a Party required or permitted under this
Agreement shall be in writing and shall be deemed to have been received on the
date of service if served personally; on the date receipt is acknowledged in
writing by the recipient if delivered by regular mail; or on the date stated on
the receipt if delivered by certified or registered mail or by a courier service
that obtains a written receipt. Notice may also be provided by facsimile, which
shall be effective on the next Business Day following the date of transmission
as reflected in the facsimile confirmation sheet. "Business Day" shall mean
Monday through Friday, SWBT/CLEC holidays excepted. Any notice shall be
delivered using one of the alternatives mentioned in this section and shall be
directed to the applicable address indicated below or such address as the Party
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Page 42 of 45
to be notified has designated by giving notice in compliance with this section,
except that notices to a Party's 24-hour contact number shall be by telephone
and/or facsimile and shall be deemed to have been received on the date
transmitted.
To CLEC: Fulltel Communications, Inc.
Xxxxxxx X. Xxxxxxxx, President and CEO
000 Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
000-000-0000 (Fax)
and copy to:
Xxxxxxx X. Xxxxx
Wilkes, Artis, Xxxxxxx & Xxxx
0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
000-000-0000 (Fax)
To SWBT: Account Manager
Four Xxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
24-Hour Network Management Contact
----------------------------------
For CLEC:
Engineering/Operations Manager
000-000-0000
For SWBT:
Area Manager-NSMC Control
0-000-000-0000
28.15 Publicity and Use of Trademarks or Service Marks.
28.15.1 The Parties agree not to use in any advertising or
sales promotion, press releases, or other publicity matters any endorsements,
direct or indirect quotes, or pictures implying endorsement by the other Party
or any of its employees without such Party's prior written approval. The Parties
will submit to each other for written approval, prior to publication, all
publicity matters that mention or display one another's name and/or marks or
contain language from which a connection to said name and/or marks may be
inferred or implied; the Party to whom a request is directed shall respond
promptly. Nothing herein, however, shall be construed as preventing either Party
from publicly stating the fact that it has executed this Agreement with the
other Party.
28.15.2 Nothing in this Agreement shall grant, suggest, or
imply any authority for one Party to use the name, trademarks, service marks, or
trade names of the other for commercial purposes without prior written approval.
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Page 43 of 45
28.16 Section 252(i) Obligations. If either Party enters into an
agreement (the "Other Agreement") approved by the Commission or FCC pursuant to
Section 252 of the Act (regardless of whether the approved agreement was
negotiated or arbitrated) which provides for the provision of arrangements
covered in this Agreement to another requesting Telecommunications Carrier,
including an Affiliate, such Party shall make available to the other Party such
arrangements upon the same rates, terms and conditions as those provided in the
Other Agreement. At its sole option, the other Party may avail itself of either
(i) the Other Agreement in its entirety or (ii) the prices, terms and conditions
of the Other Agreement that directly relate to any of the following duties as a
whole:
(1) Interconnection - Section 251(c)(2) of the Act; or
(2) Exchange Access - Section 251(c)(2) of the Act; or
(3) Unbundling - Section 251(c)(3) of the Act; or
(4) Wireless Traffic (Section 7.4 of this Agreement); or
(5) Resale - Section 251(c)(4) of the Act (Appendix Resale); or
(6) Collocation - Section 251(c)(6) of the Act (Section 13.0 of this
Agreement); or
(7) Number Portability - Section 251(b)(2) of the Act (Section 14.0
of this Agreement); or
(8) Database Access - Section 271(c)(2)(B)(x) of the Act (Section
17.0 of this Agreement); or
(9) Access to Rights of Way - Section 251(b)(4) of the Act (Section
16.0 of this Agreement); or
(10) White Pages - Section 271(c)(2)(B)(viii) of the Act (Appendix
White Pages).
In addition to any rights set forth above, CLEC at its option may
obtain any interconnection service or network element, at the same rates, terms,
and conditions, which results from an arbitration and is contained in an
approved agreement. However, to the extent SWBT appeals or otherwise seeks
modification of such arbitration results in a manner that stays the
effectiveness of that approved agreement, then the results will not be
considered effective until such time as the stay is lifted.
In the event CLEC exercises its rights under this Section, it may
retain provisions within this Agreement that are otherwise specific to its
wireless technology.
28.17 Joint Work Product. This Agreement is the joint work product of
the Parties and has been negotiated by the Parties and their respective counsel
and shall be fairly interpreted in accordance with its terms and, in the event
of any ambiguities, no inferences shall be drawn against either Party.
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Page 44 of 45
28.18 Intervening Law. This Agreement is entered into as a result of
both private negotiation between the Parties and the incorporation of some of
the results of arbitration by the Oklahoma Corporation Commission. If the
actions of Oklahoma or federal legislative bodies, courts, or regulatory
agencies of competent jurisdiction invalidate, modify, or stay the enforcement
of laws or regulations that were the basis for a provision of the contract which
is reflective of the Arbitration Award approved by the Commission, the affected
provision shall be invalidated, modified, or stayed as required by action of the
legislative body, court, or regulatory agency. In such event, the Parties shall
expend diligent efforts to arrive at an agreement respecting the modifications
to the Agreement required. If negotiations fail, disputes between the Parties
concerning the interpretation of the actions required or provisions affected by
such governmental actions shall be resolved pursuant to the dispute resolution
process provided for in this Agreement. The invalidation, stay, or modification
of the pricing provisions of the FCC's First Report and Order in CC Docket No.
96-98 (August 8, 1996) and the FCC's Order on Reconsideration (September 27,
1996) shall not be considered an invalidation, stay, or modification requiring
changes to provisions of the Agreement required by the Commission Arbitration
Award, in that the FCC's pricing provisions are not the basis for the costing
and pricing provisions of the Commission's Arbitration Award.
28.19 No Third Party Beneficiaries; Disclaimer of Agency. This
Agreement is for the sole benefit of the Parties and their permitted assigns,
and nothing herein express or implied shall create or be construed to create any
third-party beneficiary rights hereunder. Except for provisions herein expressly
authorizing a Party to act for another, nothing in this Agreement shall
constitute a Party as a legal representative or agent of the other Party, nor
shall a Party have the right or authority to assume, create or incur any
liability or any obligation of any kind, express or implied, against or in the
name or on behalf of the other Party unless otherwise expressly permitted by
such other Party. Except as otherwise expressly provided in this Agreement, no
Party undertakes to perform any obligation of the other Party, whether
regulatory or contractual, or to assume any responsibility for the management of
the other Party's business.
28.20 No License. No license under patents, copyrights or any other
intellectual property right (other than the limited license to use consistent
with the terms, conditions and restrictions of this Agreement) is granted by
either Party or shall be implied or arise by estoppel with respect to any
transactions contemplated under this Agreement.
28.21 Survival. The Parties' obligations under this Agreement which by
their nature are intended to continue beyond the termination or expiration of
this Agreement shall survive the termination or expiration of this Agreement.
28.22 Scope of Agreement. This Agreement is intended to describe and
enable specific Interconnection and compensation arrangements between the
Parties. This Agreement does not obligate either Party to provide arrangements
not specifically provided herein.
28.23 Entire Agreement. The terms contained in this Agreement and any
Schedules, Exhibits, Appendices, tariffs and other documents or instruments
referred to herein, which are incorporated into this Agreement by this
reference, constitute the entire agreement between the Parties with respect to
the subject matter hereof, superseding all prior understandings, proposals and
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other communications, oral or written. Neither Party shall be bound by any
preprinted terms additional to or different from those in this Agreement that
may appear subsequently in the other Party's form documents, purchase orders,
quotations, acknowledgments, invoices or other communications. This Agreement
may only be modified by a writing signed by an officer of each Party.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of this _____ day of _________________, 19____ .
Fulltel Communications, Inc. *Southwestern Xxxx Telephone Company
By: By:
Printed: Printed:
Title: Title: President - Industry Markets
----------------------------
AECN/OCN #_____________
* The Parties acknowledge that on January 25, 1999, the United States Supreme
Court issued its opinion in AT&T Corp. v. Iowa Utilities Bd., 1999 WL 24568
(U.S.). The Parties further acknowledge and agree that neither party had a full
opportunity to factor that decision into the Section 252(i) adoption and
preparation of this Agreement and that by executing this Agreement, neither
Party waives any of its rights, remedies, or arguments with respect to such
decision, including its rights under the intervening law clause of this
Agreement, and any legal or equitable rights of review (including court
reconsideration).
