Exhibit 10.35.1
THIRD AMENDMENT
TO
THE INTERCONNECTION AGREEMENT BETWEEN
DELTACOM, INC. AND
BELLSOUTH TELECOMMUNICATIONS, INC.
DATED MARCH 12, 1997
Pursuant to this Agreement (the "Third Amendment"), DeltaCom, Inc.
("DeltaCom") and BellSouth Telecommunications, Inc. ("BellSouth") hereinafter
referred to collectively as the "Parties", hereby agree to amend that
Interconnection Agreement between the Parties dated March 12, 1997
("Interconnection Agreement").
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, the Parties hereby covenant and agree as follows:
1. The Parties agree that the resale restrictions set forth in Section
III.A. of the first Amendment to the Interconnection Agreement dated March 12,
1997 between BellSouth and DeltaCom shall be deleted.
2. The Parties agree that the only restrictions on resale shall be those
set forth in the Second and Final Order of the Arbitrators in the AT&T/MCI
interconnection arbitrations, Docket Numbers 96-01152 and 96-01271 (the
"Arbitrations"). (See pp. 13-18 of Second and Final Order dated January 23,
1997, attached hereto as Exhibit A.)
3. The Parties agree that all of the other provisions of the
Interconnection Agreement shall remain in full force and effect. Nothing in this
Third Amendment shall in any way limit DeltaCom's ability to select and
substitute more favorable rates or terms of Section XXII, entitled Most
Favorable Provisions, of the Interconnection Agreement.
4. The Parties acknowledge that the terms of this Third Amendment were
established as a result of orders of the Tennessee Regulatory Authority ("TRA")
in the Arbitrations and Avoidable Cost proceedings. The Parties agree that
execution of this Amendment and its submission to the TRA is made without
prejudice to the rights of BellSouth to challenge any decision of the TRA in the
Arbitrations, and to the extent DeltaCom intervenes in the Arbitrations,
execution of this Third Amendment and its submission to the TRA is made without
prejudice to the rights of DeltaCom to challenge any decision of the TRA in the
Arbitrations. The parties further agree to conform this Third Amendment to any
subsequent order of the TRA relating to any of the rates, terms and conditions
affected by this Third Amendment.
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5. The Parties further agree that either or both of the Parties is
authorized to submit this Third Amendment to the Tennessee Regulatory Authority
or other regulatory body having jurisdiction over the subject matter of this
Third Amendment, for approval subject to Section 252(e) of the federal
Telecommunications Act of 1996.
IN WITNESS WHEREOF, the Parties hereto have caused this Third Amendment to
be executed by their respective duly authorized representatives on the date
indicated below.
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DELTACOM, INC. BELLSOUTH TELECOMMUNICATIONS,
INC.
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------------- ------------------------------------
DATE: March 27, 1997 DATE: April 1, 1997
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EXHIBIT A
ISSUE 1: "WHAT SERVICES PROVIDED BY BELLSOUTH, IF ANY, SHOULD BE EXCLUDED FROM
RESALE?"/(15)/
COMMENTS AND DISCUSSION:
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On November 14, 1996, the Arbitrators ordered that all services
provided by BellSouth, with the exception of short-term promotions, as that term
is defined below, should be made available for resale, including specifically,
but without limiting the foregoing, long-term promotions, as that term is
defined below, LifeLine Services, Link-Up Services, grandfathered or obsoleted
services, 911 Services, contract service arrangements, and state-specific
discount plans. In other words, the Arbitrators answered the question presented,
by a unanimous vote, as follows: that no service provided by BellSouth shall be
excluded from resale, except short-term promotions.
With regard to the resale of 911 Services, each of the Arbitrators
recognized the importance of the service and that 911 boards should not be
excluded from the benefits which may be derived from competition. They cautioned
not only those subject to the provisions of any order of arbitration award, but
also the 911 boards in the State of Tennessee, to preserve, protect, and verify
that the effectiveness and integrity of the emergency systems will not be harmed
if they choose to change telecommunications carriers.
Finally, Director Xxxxxx added that restrictions on cross-class selling
are permissible restrictions on the services available for resale./(16)/
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/(15)/ The motion was made by Chairman Xxxxx and amended by Director Xxxxxx. The
motion, as amended, was seconded by Director Xxxxxx and passed unanimously.
/(16)/ This matter was also covered in the motion made by Director Xxxx in Issue
2. Both the amendment which Director Xxxxxx made to the motion of Chairman Xxxxx
in Issue 1 and the motion of Director Xxxx in Issue 2 passed unanimously. The
order on this aspect has been reduced to writing in Paragraph 13.
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On December 3, 1996, the Arbitrators voted unanimously to adopt the
language proposed by BellSouth with regard to contract service arrangements,
nonrecurring charges, and inside wire maintenance./17/
ORDERED:
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8. That all services provided by BellSouth, with the exception of
short-term promotions, as that term is defined below, should be, and hereby are,
made available by BellSouth for resale to AT&T and MCI.
9. That the following terms and conditions on short-term and
long-term promotions are reasonable and necessary, and shall be implemented:
a. Short-term promotions be, and hereby are, defined as those
promotions that are offered for a ninety (90) day period or less, and which
are not offered on a consecutive basis;
b. Long-term promotions be, and hereby are, defined as those
promotions that are offered for more than ninety (90) days;
c. In order to prohibit any abuse or potential abuse of the
provision that short-term promotions are not available for resale, BellSouth may
not offer a series of the same or substantially similar short-term promotions;
d. Long-term promotions may be obtained by AT&T or MCI at one
of the following rates:
(1) the stated tariff rate, less the wholesale discount;
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/17/ Chairman Xxxxx made the motion on the Final Best Offer. It was seconded by
Director Xxxx and unanimously approved.
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(2) the promotional rate (the promotional rate offered by
BellSouth will not be discounted further by the wholesale discount rate):
e. When AT&T or MCI obtains a long-term promotional offering at the
promotional rate, they will only be permitted to obtain the promotional rate
for the period that the promotion is offered by BellSouth. At the time the
promotion ends, if AT&T or MCI chooses to continue obtaining the applicable
service, they must obtain that service at the stated tariff rate, less the
wholesale discount;
f. AT&T and MCI can only offer a promotional rate for a service
obtained subject to the provisions of this Paragraph 8 to customers who would
have qualified for the promotional rate if the service were being offered by
BellSouth;
g. Any benefit of the promotion must be realized within the time
period of the promotion and BellSouth may not use promotional offerings to
evade the wholesale obligation. If AT&T or MCI believes that such abuse is
occurring, they may file a petition with the Authority challenging the promotion
and, if such petitions are many in number, the Directors of the Authority may
contemplate the establishment of specific rules governing promotional discounts,
which may include, not only the provisions listed above, but also additional
rules or, in the alternative, the Directors may consider making all promotions
available for resale.
10. That the following terms and conditions on the resale of LifeLine
Services are reasonable and necessary, and shall be implemented:
a. AT&T and MCI shall only offer LifeLine Service to customers who
meet the qualifications outlined in the "means test";
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b. LifeLine Services and rates shall be offered by AT&T or MCI
in a manner similar to the manner in which LifeLine Services are offered in the
market today, that is through a discount to BellSouth's Message Rate Service,
General Subscriber Tariff A3.2.4;/16/
c. AT&T and MCI shall purchase BellSouth's Message Rate Service
at the stated tariff rate, less the wholesale discount. AT&T and MCI must
further discount the wholesale Message Rate Service to LifeLine customers with a
discount which is no less than the minimum discount that BellSouth now provides;
d. The maximum rate which AT&T and MCI may charge for LifeLine
Service shall be capped at the retail flat rate offered by BellSouth;
e. BellSouth shall charge the federally-mandated Subscriber
Line Charge (currently $3.50) to AT&T and MCI;/19/
f. AT&T and MCI are required to waive the Subscriber Line
Charge for the end-user;
g. AT&T and MCI are responsible for recovering the Subscriber
Line Charge from the National Exchange Carriers Association's interstate toll
settlement pool just as BellSouth does today.
11. That the following terms and conditions on the resale of Link-Up
Service are reasonable and necessary, and shall be implemented:
a. AT&T and MCI may offer Link-Up Service only to those
customers who meet the qualifications outlined in the "means test";
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/16/ However, if a competitor has a proposal that it believes is just and
reasonable, the competitor may file the proposal with the Authority for
consideration.
/19/ See FCC Report and Order, Paragraph 983.
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b. AT&T and MCI must further discount the Link-Up Service by at
least the percentage that is now offered by BellSouth;
c. AT&T and MCI are responsible for recouping the additional
discount in the same manner as BellSouth does today.
12. That AT&T and MCI may only offer grandfathered services to
customers or subscribers who have already been grandfathered. Grandfathered
services may not be resold to a new or different group of customers or
subscribers.
13. That, while BellSouth has been ordered to make 911 Services
available for resale, AT&T and MCI are cautioned to preserve the integrity of
911 Services.
14. That the Final Best Offer proposed by BellSouth with regard to
contract service arrangements, nonrecurring services, and inside wire
maintenance, attached hereto as Exhibit "A" and made a part hereof by reference,
be, and hereby is, approved and adopted by the Arbitrators.
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ISSUE 2: WHAT TERMS AND CONDITIONS, INCLUDING USE AND USER RESTRICTIONS, IF
ANY, SHOULD BE APPLIED TO RESALE OF BELLSOUTH SERVICES?/20/
COMMENTS AND DISCUSSION:
-----------------------
On November 14, 1996, the Arbitrators answered the question presented
by unanimous vote. Director Xxxx, in making the motion, stated that in light of
the FCC's referring to limitations as "presumptively unreasonable," she wished
to adopt only the restrictions stated in the FCC Report and Order, i.e., no
resale of access, no resale to independent pay phone providers, and no cross-
class selling./21/ Chairman Xxxxx stated that he concurred with Director Kyle's
motion, but wanted to amend it by adding that AT&T and MCI must resell services
in compliance with the applicable terms and conditions in BellSouth's retail
tariffs. Director Xxxxxx further stated that the applicable terms and conditions
in the tariffs must be just, reasonable, and nondiscriminatory as required by
the Act.
On December 3, 1996, the Arbitrators ordered that the contract
language negotiated by and between BellSouth and AT&T to comply with the
Arbitrators' First Order and to resolve any remaining unresolved issues under
Issue 2 shall also be used by MCI and BellSouth in their Innerconnection
Agreement./22/
ORDERED:
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15. That no terms and conditions, including use and user
restrictions, will be applicable to the resale of BellSouth services, except
for:
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/20/ Motion was made by Director Xxxx and amended by Chairman Xxxxx with
comments by Director Xxxxxx. The motion, as amended, was seconded by Chairman
Xxxxx and was passed by unanimous vote of the Arbitrators.
/21/ See FCC Report and Order, Paragraphs 871, 872, 873, 874, 875, 876, and 877,
based upon the Act at Section 251(c)(4).
/22/ Director Xxxxxx'x motion on December 3, 1996, was seconded by Chairman
Xxxxx and was passed by the unanimous vote of the Arbitrators.
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a. the terms and conditions listed above in Paragraphs 9, 10,
11, 12 and 13;
b. a restriction on the resale of access;
c. a restriction on the resale to independent pay phone
providers;
d. a restriction on cross-class selling; and
e. reasonable, non-discriminatory, and narrowly tailored terms,
conditions, and limitations in the underlying BellSouth tariffs.
16. That the contract language negotiated by and between BellSouth
and AT&T to comply with the Arbitrators' First Order and to resolve any
remaining unresolved issues under Issue 2 shall also be used by MCI and
BellSouth in their Interconnection Agreement.
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