EXHBIT 10.63
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Mi2A AMENDMENT TO THE
INTERCONNECTION AGREEMENT UNDER
SECTION 271 OF THE TELECOMMUNICATIONS ACT OF 1996
This Mi2A Amendment to the Interconnection Agreement under Section 271 of
the Telecommunications Act of 1996 (the "Amendment") is dated as of May 15,
2001, by and between Ameritech Michigan ("Ameritech") and Xxxx.xxx Holding,
Corp., with its principal offices at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000 ("CLEC").
WHEREAS, Ameritech and CLEC are parties to that certain Interconnection
Agreement under Sections 251 and 252 of the Telecommunications Act of 1996 dated
as of May 15, 2001 (the "Agreement");
WHEREAS, Ameritech has participated in a collaborative process with the
Michigan Public Service Commission (the "Commission") and numerous competitive
telecommunications carriers as part of the process for Ameritech to obtain
in-region interLATA authority in Michigan, consistent with the procedures
established in Case No. U-12320;
WHEREAS, incumbent Local Exchange Carriers, pursuant to 47 U.S.C.
51.315(b), are required to make available existing combinations of Unbundled
Network Elements ("UNEs");
WHEREAS, on July 18, 2000, the Eighth Circuit in Iowa Util. Bd. v. FCC, 219
F.3d 744 (8th Cir. 2000), cert. granted 121 S.Ct 877-79 (2001), reaffirmed its
prior ruling in Iowa Util. Bd.v. FCC, 120 F.3d 753 (8th Cir. 1997), vacating
rules 51.315(c)-(f), which required incumbent LECs to perform the functions
necessary to combine unbundled network elements in any manner, i.e., "new"
combinations;
WHEREAS, the parties may have different interpretations regarding the
effect of the Eighth Circuit's decision and, consistent with Section 6.0 of this
Amendment, neither party by signing this amendment waives its rights to appeal
such decision or its rights in arbitration before this Commission regarding the
definition of new and existing combinations contained herein;
WHEREAS, Ameritech offered as part of such collaborative process to make
modifications to existing and new Agreements to make available certain "new"
combinations of UNEs, which revised offer was reviewed by the Commission in Case
No. U-12320 in an Order dated January 4, 2001 and in an Order on Rehearing dated
March 19, 2001; and
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WHEREAS, based on the foregoing, the Parties are entering into this
Amendment to incorporate into the Agreement terms and conditions that address
the availability of both existing and new combinations of UNEs.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the Parties agree as follows.
1.0 INTRODUCTION
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1.1
This Amendment sets forth the terms, conditions, rates and charges under which
Ameritech agreed to provide, as part of the Section 271 collaborative process in
Michigan, existing and new combinations of UNEs ("Combinations") in order to
facilitate its in-region interLATA approval.
1.2
Unless otherwise defined herein, capitalized terms shall have the meanings
assigned to such terms in the Agreement.
1.3
Except as provided in this Amendment, during the term of this Amendment,
Ameritech will not discontinue, as to CLEC, any Combination offered to CLEC
hereunder. This Section is not intended to impair Ameritech's ability to make
changes to its Network, so long as such changes are not inconsistent with
applicable law and do not result in the discontinuance of the offerings of
Combinations by Ameritech to CLEC as set forth herein during the term of this
Amendment.
1.4
This Amendment includes and incorporates herein the Agreement, and all
accompanying and effective Appendices, Addenda and Exhibits to the Agreement. To
the extent there is a conflict or inconsistency between the terms, conditions or
prices in this Amendment, including the attached Appendix entitled, Pricing,
271-Existing and New Combinations, dated March 29, 2001, (hereinafter referred
to as "Pricing Appendix-Combinations") and those contained in the Agreement, and
all accompanying effective Appendices, Addenda and Exhibits to the Agreement,
the terms, conditions and prices in this Amendment, including the attached
Pricing Appendix-Combinations, will control and apply.
2.0 AMENDMENT TO THE AGREEMENT
On and after the Effective Date of this Amendment, as defined in Section 3.0
below, the Agreement is hereby amended by adding the following:
2.1 UNE COMBINATION PROVISIONS
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2.1.1
Except as modified below in Sections 2.2.5, 2.2.6 and 2.3, Ameritech agrees
to make the network elements Combinations set forth in this Amendment
available to CLEC for the term of this Amendment, as defined in Section 4.0
below, on the terms and at the prices provided in this Amendment.
2.1.2
As provided herein, Ameritech will make available the following
Combinations: i) preexisting or already assembled combinations of unbundled
local loops, unbundled local switching ports and shared transport, known as
pre-existing UNE Platform or UNE-P; ii) new or newly assembled combinations
of certain unbundled local loops, unbundled Local switching ports and
shared transport, known as New UNE-P; and iii) certain pre-existing and new
or newly assembled combinations of unbundled local loops and dedicated
interoffice transport, known as Enhanced Extended Loop or EELs. As provided
in Section 2.2.3.4 below, these Combinations are in addition to the CLEC's
ability to obtain access to unbundled network elements in a manner that
enables the CLEC to combine such elements to provide telecommunications
services.
2.1.3
The definitions, terms and conditions related to Unbundled Local Loops,
Unbundled Local Switching with Shared Transport ("ULS-ST") and Unbundled
Dedicated Transport Facilities described in the Agreement shall continue to
apply as long as provided as part of a Combination. If the Agreement does
not contain terms and conditions for ULS-ST, the Agreement will be amended
to be consistent with the terms and conditions in M.P.S.C. No. 20R, Part
19, Section 21.
2.1.4
All rates and charges related to Unbundled Local Loops, Unbundled Local
Switching with Shared Transport, and Unbundled Dedicated Transport
Facilities contained in the Agreement shall continue to apply as long as
provided as part of a Combination. If the Agreement does not contain rates
and charges for ULS-ST, the Agreement will be amended to be consistent with
the rates and charges in M.P.S.C. No 20R, Part 19, Section 21 consistent
with Orders arising from Case No. U-12622, including, but not limited to
any appeals, and subject to the change of law provisions of the general
terms and conditions of this Agreement.
2.2 PRE-EXISTING AND NEW UNE-P
2.2.1 PRODUCT OFFERING
2.2.1.1
Ameritech will, except as provided elsewhere in this Section 2.2,
provide combinations of network elements to CLEC consistent with
Ameritech's obligations in this Amendment at the applicable charges
set forth in this Amendment and Pricing Appendix- Combinations. For
preexisting or already assembled Combinations, where no work is
required by Ameritech in order to establish connections between the
requested elements
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at the central office, an outside plant location, or the customer
premises, Ameritech will apply the non-recurring and recurring charges
applicable to the elements included in the combination, and the
applicable service order charges as specified in the attached Pricing
Appendix-Combinations. Such combinations may be referred to elsewhere
in this Amendment as "pre-existing" or "already assembled"
Combinations and include all orders included within the definition of
"Contiguous Interconnection of Network Elements" in sections 2.2.1.2
and 2.2.1.3, below.
For new assemblies of UNE combinations that are not within the
above-referenced definition of "Contiguous Interconnection of Network
Elements" and that require manual work by Ameritech in order to
establish connections between the requested elements at the central
office, an outside plant location, or the customer premises, the
applicable recurring and nonrecurring charges and service order
charges will apply as specified in the Pricing Appendix-Combinations.
Such combinations may be referred to elsewhere in this Agreement as
"new" or "newly assembled" combinations. There are three New UNE-P
combinations offered under this Amendment. CLECs may request that
Ameritech combine the following unbundled loop and port combinations
in conjunction with shared transport for the New UNE-P:
- 2-Wire Basic Analog Loop combined with Basic Line Port
- 2-Wire 160 kbps (ISDN-BRI) Digital Loop combined with ISDN
Direct Port
- 4-Wire Digital Loop combined with Digital Trunk Port.
2.2.1.2
When CLEC orders Unbundled Network Elements or Combinations that are
pre-existing or already assembled, interconnected or functional, such
Elements and Combinations will remain interconnected or functional
without any disconnection and without loss of feature capability and
without loss of associated Ancillary Functions, if applicable. These
will be known as Contiguous Interconnection of Network Elements. The
charge for such pre-existing Combination shall be the sum of the
recurring charges applicable to the elements included in the
Combination, and the applicable service order charges as specified in
this Amendment and the Pricing Appendix-Combinations.
2.2.1.3
"Contiguous Interconnection of Network Elements" includes, without
limitation, the situation when CLEC orders all the Ameritech Unbundled
Network Elements required either (1) to convert an Ameritech end-user
customer, another CLEC pre-existing UNEP end-user customer, or a CLEC
resale end-user customer to a pre-existing UNE-P, or (2) to activate a
pre-existing combination of Unbundled Network Elements to provision a
UNE-P for such requesting CLEC (a) without any change in features or
functionality that was being provided by Ameritech (or by CLEC on a
resale basis) at the time of the order, or (b) with only the change
needed to route the customer's operator service and directory
assistance ("OS/DA") calls to the CLEC OS/DA platform via customized
routing, and/or (c) with only changes needed in order to change a
local switching feature, e.g., call waiting, and/or (d) with only work
or changes needed to activate the pre-existing
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combination of Unbundled Network Elements to provision a UNE-P. (This
2.2.1.3(b) section only applies to orders involving customized routing
after customized routing has been established to an CLEC OS/DA
platform from the relevant Ameritech local switch, including CLEC's
payment of all applicable charges to establish that routing.) There
will be no interruption of service to the end-user customer in
connection with orders covered by this section, except for processing
time that is technically necessary to execute the appropriate recent
change order in the Ameritech local switch. Ameritech will treat
recent change orders necessary to provision CLEC orders under this
section at parity with recent change orders executed to serve
Ameritech end-user customers, in terms of scheduling necessary service
interruptions so as to minimize inconvenience to end-user customers.
2.2.2 GENERAL TERMS RELATED TO UNE-P COMBINATION
2.2.2.1
The unbundled network elements provided in this Amendment are
exclusively for use by CLEC, as a "telecommunications carrier" in
providing "telecommunication services." Ameritech will provide
sufficient unbundled network element capacity to meet CLEC's network
unbundling needs where technically feasible and in compliance with
applicable law. Where insufficient capacity exists to meet the
requesting CLEC's technically feasible network unbundling needs, CLEC
may request that additional capacity be added via the "Bona Fide
Request" or Facility Modification and Construction Process, whichever
is applicable.
2.2.2.2
Pre-Existing and newly assembled UNE-P shall only be provided to CLEC
for use in the provision of telecommunications services as specified,
and to the extent required by and subject to the Telecommunications
Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) ("the Act"), the
rules, regulations, and orders of the Federal Communications
Commission ("FCC") and the Commission, and any other applicable law.
2.2.2.3
The following representations and commitments apply to pre-existing
and newly assembled UNE-P Combinations provided under this Amendment:
- Collocation, as defined in the Agreement, is not required for
access to existing or new UNE-P.
- Ameritech will offer to provide its OS/DA at tariff or, if
applicable, just and reasonable market based rates negotiated
between Ameritech and CLEC, for use by CLEC with existing or new
UNE-P.
- Branding of CLEC's OS/DA traffic routed to Ameritech's OS/DA
platform(s) shall be provided, upon request, using Service
Provider Identification (SPID).
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- Non-Telecommunications Services shall not be included with the
provision of existing or new UNE-P. This includes, but is not
limited to, voice mail, inside wire maintenance, customer
premises equipment and calling card services. Notwithstanding,
effective as of March 1, 2001, Ameritech makes available an
optional and separate voicemail arrangement for existing or new
UNE-P, at marketbased prices, pursuant to a separate
non-telecommunications service agreement, outside the scope of
sections 251, 252 or 271 of the 1996 Act.
- CLEC agrees that it has elected to obtain the Combinations
offered under this Amendment, on the terms, conditions and prices
contained herein. CLEC also expressly waives its rights to obtain
any of the same Combinations from any applicable Ameritech tariff
offering during the term of this Amendment, and agrees that
during such time this Amendment will be the exclusive means of
obtaining Combinations from Ameritech.
2.2.2.4
The features, functions, and capabilities for unbundled local
switching with shared transport provided as part of pre-existing and
new UNE-P will be provided as set forth in the Agreement (which will
be amended to be consistent with Section 21, Unbundled Local Switching
with Shared Transport). Ameritech will be responsible for the
engineering, provisioning, and maintenance and repair of the
underlying equipment and facilities that are used to provide ULS-ST.
2.2.3 ORDERING AND PROVISIONING
2.2.3.1
Ameritech will provide CLEC with electronic access for pre-ordering
capabilities and service order requests for pre-existing and new
UNE-P. Application of service order types and applicable rates are
addressed in the attached Pricing Appendix-Combinations.
2.2.3.2
Ameritech shall provide nondiscriminatory access to operations support
systems on an unbundled basis to CLEC for the provision of a
telecommunications service. Operations support system functions
consist of pre-ordering, ordering, provisioning, maintenance and
repair, and billing functions supported by Ameritech's databases and
information. Ameritech, as part of its duty to provide access to the
pre-ordering function, provides requesting telecommunications carriers
with nondiscriminatory access to the same detailed information about
the loop that is available to itself.
2.2.3.3
The service installation for each specific pre-existing and new UNE-P
combination is provided at parity with the comparable retail service.
2.2.3.4
Ameritech will provide CLEC access to the Unbundled Network Elements
provided for in this Amendment, including combinations of Network
Elements, without restriction
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except as provided in this Amendment. CLEC is not required to own or
control any of its own local exchange facilities before it can
purchase or use Unbundled Network Elements to provide a
telecommunications service under this Amendment. Ameritech will allow
CLEC to order each Network Element individually or in combination with
any other Network Elements, pursuant to the Agreement, in order to
permit CLEC to combine such Network Elements with other Network
Elements obtained from Ameritech or with network components provided
by itself or by third parties to provide telecommunications services
to its customers, provided that such combination is technically
feasible and would not impair the ability of other carriers to obtain
access to other unbundled network elements or to interconnect with
Ameritech's network. Any request by CLEC for Ameritech to provide a
type of connection between Network Elements that is not currently
being utilized in the Ameritech network and is not otherwise provided
for under this Agreement will be made in accordance with the Bona Fide
Request process described in the Agreement.
2.2.3.5
When CLEC orders specific Unbundled Network Elements in combination,
Ameritech will provide the requested elements with all the
functionality, and with at least the same quality of performance and
operations systems support (ordering, provisioning, maintenance,
billing and recording) that Ameritech provides through its own network
to its local exchange service customers receiving equivalent service
using the same combination. For example, pre-existing and new UNE-P
ordered by CLEC for local exchange service will include, without
limitation, MLT testing, real time due date assignment, dispatch
scheduling, service turn-up without interruption of customer service,
and speed and quality of maintenance, at parity with Ameritech's
delivery of service to its local exchange service customers served
through equivalent Ameritech loop and switch ports. Network element
combinations provided to CLEC by Ameritech will meet all performance
criteria and measurements that Ameritech achieves when providing
equivalent end user service to its local exchange service customers.
2.2.3.6
CLEC may request Ameritech to disconnect and reconnect local exchange
service on designated line(s) for which CLEC provides residential
service via UNE-P. Disconnection and reconnection of CLEC's basic
residential end users will be handled in a manner that enables CLEC to
comply with Rules 85 and 86, subject to the CLEC's compliance with the
notice and timing provisions in Rules 84 and 85, in Billing Standards
for Basic Residential Telecommunications Service, as ordered by the
Commission.
2.2.3.7
Technical References for the unbundled network elements comprising
Existing UNE-P can be found in the Agreement or in M.P.S.C. No. 20R,
Part 19, Section 21, Unbundled Local Switching with Shared Transport .
2.2.4 UNE-P PRICING PROVISIONS
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2.2.4.1 Existing UNE-P Combinations
All nonrecurring and recurring charges as specified in the attached
Pricing Appendix- Combinations for "existing" UNE-P apply to existing
UNE-P for the particular elements that comprise the Combination.
2.2.4.2 New UNE-P Combinations
All recurring and nonrecurring charges as specified in the attached
Pricing Appendix- Combinations for "new" UNE-P apply to New UNE-P for
the particular elements requested as part of the Combination.
2.2.5 FOR SERVICE TO BUSINESS CUSTOMERS
Until March 28, 2003, which is a period of two years after the Commission's
Order in Case No. U-12320 approving the general terms of this Amendment as
described in Section 3.1 became effective, Ameritech will provide to CLEC
the existing UNE-P and new UNE-P combinations as provided in this Amendment
during the Term of this Amendment without change notwithstanding subsequent
changes in law. Provided, however, that if a subsequent final and
nonappealable judicial decision or FCC order modifies the obligations of
incumbent LECs regarding combinations of network elements, including but
not limited to the precise demarcation point between new and existing
combinations, the parties reserve their rights to seek an appropriate
modification of this Amendment and shall negotiate in good faith an
appropriate modification to conform this Amendment to such decision or
order, subject to resolution by the Commission if the parties are unable to
reach agreement. For purposes of this Section, Business Customers shall be
defined as described in M.P.S.C. No. 20R, Part 2, Section 2 "Location and
Use of Telephone Service." Beginning on the date that is two years after
such Commission approval, the modifications set forth in paragraphs 2.2.5.1
and following may be adopted by Ameritech:
2.2.5.1
If the FCC or the Commission determines after this Amendment is
executed by the Parties or has determined before this Amendment is
executed by the Parties that a certain network element need not be
provided under Section 251(c)(3) of the FTA, either statewide or in a
particular location or locations, Ameritech may set the price of such
network element(s) at a market level for the applicable areas.
Ameritech will provide 60 days' notice (in accordance with the Notice
provision in the General Terms and Conditions of this Agreement) to
CLEC that the FCC or the Commission has made such a determination.
Ameritech will include in the notice the specifics of any pricing
changes and the implementation dates for the pricing changes
applicable to CLEC. Existing nonrecurring prices will apply to any
UNEs for which orders are received prior to midnight on the day
preceding the date specified for the pricing change. Application of
the market level nonrecurring prices will apply beginning at 12:01
a.m. on the date specified for implementation. Application of the
market level recurring charges will apply beginning at 12:01 a.m. on
the date specified for implementation without regard to the time or
date the orders were received by Ameritech. A market price set by
Ameritech
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pursuant to this paragraph will not be subject to review, approval or
disapproval by the Commission.
2.2.5.2
If the FCC or a court modifies or has modified the TELRIC methodology
applicable to unbundled network elements, Ameritech and CLEC may
renegotiate the applicable prices for unbundled network elements
provided pursuant to Section 251(c)(3) of Xxxxx 00, Xxxxxx Xxxxxx
Code. If the Parties are unable to reach agreement on applicable
prices within 135 days of the request by either Party for such
negotiations, either Party may submit remaining disputes to the
Commission for arbitration. The scope of renegotiation and arbitration
of prices under this section will be limited to the scope of the FCC
or court modification of the TELRIC methodology to the extent that
such methodology was relied upon in setting the unbundled network
element rates in this Amendment, and further limited to the impact
that the modification of the TELRIC methodology would have had if it
had been in effect at the time the UNE prices applicable to this
Amendment were established. Pending the establishment of any modified
prices by Commission arbitration award or Commission approval of
negotiated modifications, the prices set forth in this Amendment will
apply, but will be subject to true-up back to the end of the two year
period described above in 2.2.5 at the request of either party and
subject to the approval of the Commission.
2.2.5.3
In those Ameritech central offices where there are four (4) or more
CLECs collocated for which Ameritech has provided UNEs, Ameritech may
elect to not combine UNEs that are not already combined in that
central office, i.e., "new" combinations as defined in section
2.2.1.1. In that event, Ameritech will request that CLEC provide a one
(1) year forecast of its expected demand for UNEs in that central
office that CLEC will combine outside of its existing or planned
collocation arrangements. Within sixty (60) days of receipt of CLEC's
forecast, Ameritech will construct a secured frame room in the central
office or, if space is not available, external cross connect cabinet
until space becomes available in the central office at no additional
cost to CLEC where CLEC may combine UNEs. If CLEC submits such a
forecast, Ameritech will continue to combine UNEs until the secured
frame room or external cross connect cabinet is made available to
CLEC. However, if at any time after a secured frame room or external
cross connect cabinet is made available, Ameritech is unable to meet
CLEC's forecasted demand for UNEs to be combined through use of these
arrangements due to a lack of capacity, Ameritech will resume
combining UNEs for CLEC on new combination orders until capacity can
be provided. If CLEC fails to submit such a forecast, Ameritech will
no longer combine UNEs that are not already combined. CLEC can access
the secured frame or the external cross-connect cabinet without having
to collocate.
2.2.5.3.1
When a CLEC orders elements for combining at the secured frame or
cabinet, Ameritech will cross-connect those elements to the frame
or cabinet at no additional charge to the CLEC, beyond the
recurring and non-recurring charges provided for the elements
themselves under this Amendment (e.g., for a loop and port
combination,
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Ameritech will cross-connect the loop and the port to the secured
frame or cabinet, and the CLEC will pay applicable recurring and
non-recurring charges for the loop and the port, but there is no
charge for use of the frame or cabinet and no charge for a cross
connect from loop to frame/cabinet or from port to
frame/cabinet).
2.2.5.3.2
Ameritech and CLEC shall negotiate a mutually agreeable method of
wiring for cross-connects at the secured frame or cabinet. During
such period of negotiation or until a mutually agreeable method
of wiring is established, the CLEC may obtain from Ameritech, the
combining services for Network Elements at a non-recurring charge
to be set by Ameritech at any amount not to exceed (TBD) for
simple business orders and (TBD) for complex business orders.
This charge shall apply in addition to any other applicable
recurring and non-recurring charges.
2.2.5.3.3
A CLEC may order multiple elements on a single local service
request ("LSR") for combining at the secured frame or external
cabinet, in accordance with the terms and conditions for ordering
and provisioning of UNEs as set out in the Agreement.
2.2.5.3.4
If this option is selected as described in 2.2.5.3, Ameritech
will develop performance measures related to the timeliness and
accuracy of its provisioning of elements for combining at the
secured frame or external cabinet, during the six-month review
process as set out in the Performance Remedy Plan. These measures
will be incorporated into the liquidated damages and assessments
provisions of the Performance Remedy Plan.
2.2.5.4
Ameritech may not substitute the above described methods of combining
UNEs for its own continued performance of such connections at cost
based rates if the FCC or reviewing court has determined that the
ILECs have an obligation to perform such connections.
2.2.6 FOR SERVICE TO RESIDENTIAL CUSTOMERS
Until March 28, 2004, which is a period of three years after the
Commission's Order in Case No U-12320 approving the general terms of this
Amendment as defined in Section 3.1 became effective, Ameritech will
provide to CLEC the existing UNE-P and new UNE-P combinations as provided
in this Amendment during the Term of this Amendment without change
notwithstanding subsequent changes in law. Provided, however, that if a
subsequent final and nonappealable judicial decision or FCC order modifies
the obligations of incumbent LECs regarding combinations of network
elements, including but not limited to the precise demarcation point
between new and existing combinations, the parties reserve their rights to
seek an appropriate modification of this Amendment and shall negotiate in
good faith an appropriate modification to
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conform this Amendment to such decision or order, subject to resolution by
the Commission if the parties are unable to reach agreement. For purposes
of this Section, Residential Customers shall be defined as described in
M.P.S.C. No. 20R Part 2, Section 2 "Location and Use of Telephone
Services." Beginning on the date that is three years after such Commission
approval, the modifications set forth in paragraphs 2.2.6.1 and following
may be adopted by Ameritech:
2.2.6.1
If the FCC or the Commission determines that a certain network element
need not be provided under Section 251(c)(3) of the FTA, either
statewide or in a particular location or locations, Ameritech may set
the price of such network element(s) at a market level for the
applicable areas. To the extent that the FCC or Commission
determination eliminates the obligation to supply an element at TELRIC
rates as part of a platform of unbundled network elements, i.e., a
combination of elements sufficient to permit a CLEC to deliver
end-to-end service to an end user customer without using CLEC
equipment or facilities (other than operator services and directory
assistance service that the CLEC may supply via customized routing),
then, in pricing the unbundled network element platform under this
provision, Ameritech shall not increase the total price of the
platform by more than twenty (20) percent each year.
2.2.6.2
If the FCC or a court modifies or has modified the TELRIC methodology
applicable to unbundled network elements, Ameritech and CLEC may
renegotiate the applicable prices for unbundled network elements
provided pursuant to Section 251(c)(3) of Xxxxx 00, Xxxxxx Xxxxxx
Code. If the Parties are unable to reach agreement on applicable
prices within 135 days of the request by either Party for such
negotiations, either Party may submit remaining disputes to the
Commission for arbitration. The scope of renegotiation and arbitration
of prices under this section will be limited to the scope of the FCC
or court modification of the TELRIC methodology to the extent that
such methodology was relied upon in setting the unbundled network
element rates in this Amendment, and further limited to the impact
that the modification of the TELRIC methodology would have had if it
had been in effect at the time the UNE prices applicable to this
Amendment were established. Pending the establishment of any modified
prices by Commission arbitration award or Commission approval of
negotiated modifications, the prices set forth in this Amendment will
apply but will be subject to true-up back to the end of the three year
period described in 2.2.6 above at the request of either party and
subject to the approval of the Commission.
2.3 ENHANCED EXTENDED LOOP (EEL)
Consistent with Sections 2.2.5, 2.2.5.1, 2.2.5.2, and 2.2.6, 2.2.6.1 and 2.2.6.2
above:
2.3.1
Ameritech will combine unbundled loops with unbundled dedicated transport
as described herein to provide enhanced extended loop at the recurring and
nonrecurring charges applicable to each UNE requested above, with
applicable recurring and
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nonrecurring charges for cross connects, multiplexing and other options, as
available, and applicable Service Order Charges. Ameritech will
cross-connect unbundled 2 or 4-wire analog or 2-wire digital loops to
unbundled DS1, or DS3 dedicated transport facilities for CLEC's provision
of circuit switched or packet switched telephone exchange service to CLEC's
own end user customers. Ameritech will also cross-connect unbundled 4-wire
digital loops (DS1 loops) to unbundled DS1, or DS3 dedicated transport
facilities for CLEC's provision of circuit switched telephone exchange
service to CLEC's own end user customers.
2.3.2
The unbundled dedicated transport facility will extend from CLEC customer's
Ameritech serving wire center to CLEC's collocation cage in a different
Ameritech central office in the same LATA. CLECs must order the dedicated
transport facility, with any necessary multiplexing, from CLEC's
collocation cage to the wire center serving CLEC's end user customer. CLEC
will order each loop as needed and provide Ameritech with the Channel
Facility Assignment (CFA) to the dedicated transport. For the loop UNE, the
dedicated transport UNE, the cross-connects needed to combine the two, as
well as any necessary multiplexing, ordering and provisioning will be
pursuant to the ordering and provisioning terms and conditions for UNEs as
set out in the Agreement. For the loop UNE, the dedicated transport UNE,
the cross-connects needed to combine the two, as well as any necessary
multiplexing, maintenance will be pursuant to the maintenance terms and
conditions for UNEs as set out in the Agreement.
2.3.3
Alternatively, CLEC may cross-connect unbundled loops with the unbundled
dedicated transport facilities in its physical collocation space utilizing
its own equipment or through the secured frame room in the central office,
or if space is not available, in an external cross-connect cabinet until
space becomes available in the central office. The restrictions on loop and
transport facility type, and on CLEC services to be provided over the
extended loop, that are contained in Section 2.3.1 and 2.3.5 regarding
Ameritech-combined EELs do not apply to the combinations assembled by CLECs
under this subsection 2.3.3. CLEC can access the secured frame or the
external cross connect cabinet without having to collocate. If CLEC elects
the secured frame or cabinet option, CLEC will provide a rolling 12 month
forecast, updated every six (6) months, of its expected demand for
unbundled loops to be connected with the unbundled dedicated transport
facilities in each central office in which CLEC will combine outside of its
existing or planned collocation arrangements. Within sixty (60) days' of
receipt of CLEC's forecast for a given central office, Ameritech will
construct, at cost to CLEC, a secured frame room in the central office, or,
if space is not available, external cross connect cabinet until space
becomes available in the central office, where CLEC may combine unbundled
loops with the unbundled dedicated transport facilities. There will be an
additional charge to the CLEC for Ameritech extending loop and transport
elements to the secured frame or cabinet. If CLEC submits such a forecast,
Ameritech will temporarily combine unbundled loops with the unbundled
dedicated transport facilities until the secured frame room or external
cross connect cabinet is made available to CLEC. When the secured frame
room or external cross connect cabinet is made
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available, CLEC will, within ninety (90) days after providing a forecast
for a particular central office or thirty (30) days after receiving
appropriate terminal assignment information to place connections on the
secured frame, whichever is later, replace the temporary connections made
by Ameritech, effectively half-tapping the existing temporary connections
so that the temporary connection can be removed without interrupting the
end user's service. When notified by CLEC that its connections are complete
within the period described above, Ameritech will remove its temporary
connections. If CLEC fails to notify Ameritech that it has placed its
connections on the secured frame during that period, Ameritech will charge
CLEC the applicable special access recurring and nonrecurring rates, in
lieu of the UNE rates. Such special access charges shall be retroactive to
the date Ameritech began combining the UNEs for CLEC pursuant to this
paragraph. If at any time after a secured frame room or external cross
connect cabinet is made available, Ameritech is unable to meet CLEC's
forecasted demand for use of these arrangements due to a lack of capacity,
Ameritech will again temporarily combine unbundled loops with the unbundled
dedicated transport facilities as an interim arrangement for CLEC until
capacity can be provided. When capacity is made available, temporary
connections performed by Ameritech will be removed as described above. If a
CLEC is located at an external cross connect cabinet because Ameritech ran
out of space in a central office, once there is additional space available
in the central office, and a CLEC requests to move to the secured frame
room, there will be no charge to the CLEC for moving. Such move shall be
coordinated to minimize service disruption to the customer.
Ameritech will not disclose the forecasts provided for in this section to
any persons other than Ameritech employees responsible for provisioning
extended loops under the secured frame and cabinet options. Any other
disclosure, and any use by Ameritech of these forecasts for marketing or
business strategic purposes, is prohibited.
2.3.3.1
Ameritech and CLECs shall jointly establish, within 30 days from the
approval of this Amendment, a detailed procedure for combining 4 wire
digital loops (e.g., DS1 loops) to dedicated transport facilities
(e.g., DS3 transport) where CLECs are required to combine. In the
event the parties are unable to reach agreement, the Commission shall
establish the procedure within sixty days.
2.3.4
If CLEC orders a combination of unbundled loops and transport that meet the
definition of enhanced extended loop in this Amendment that are already
connected at the time of the CLEC order (e.g., the elements are in an
existing equivalent configuration), Ameritech will supply that combination
to CLEC as a "pre-existing combination," without separating and recombining
the elements, pursuant to Section 2.2.5 and other applicable provisions of
this Amendment, including subsection 2.3.5 below. For the reconfiguration
of qualifying special access arrangements to combined UNEs, Ameritech will
apply the recurring and nonrecurring charges applicable to each UNE
requested along with the appropriate Service Order Charge consistent with
the terms and conditions
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in M.P.S.C. No. 20R, Part 19, Section 19, Reconfiguration of Special Access
to UNE Combinations.
2.3.5
The unbundled network elements that comprise the EEL in this section 2.3
shall only be provided to CLEC to the extent the EEL is used to provide a
significant amount of local exchange service to a particular end user
customer. This limitation is the same as the requirements set forth in the
FCC's Supplemental Order Clarification in XXX XX Xxxxxx Xx. 00-00, XXX
00-000 (released June 2, 2000). CLEC's use of the EEL and its provision of
telecommunication services is as specified, and subject to, the
Telecommunications Act of 1996 ("the Act"), the rules, regulations, and
orders of the FCC and the Commission, and any other applicable law.
2.3.6
All recurring and nonrecurring charges as defined in the attached Pricing
Appendix- Combinations apply to the "new" EEL combinations provided in
Section 2.3.1, for the particular elements requested as part of such
Combination.
2.3.7
Ameritech will provide CLEC with electronic access for pre-ordering
capabilities and service order requests for EELs.
3.0 EFFECTIVE DATE
---------------
3.1
Any CLEC that wants to accept this entire Amendment, may request it in writing,
after March 29, 2001, based upon and subject to the Order on Rehearing, dated
March 19, 2001 issued by the Commission in Case No. U-12320 approving this
Amendment, and finding that the terms and conditions of this Amendment, when
implemented meet the product offering requirements of 47 U.S.C. Section
271(c)(2)(B)(ii) for purposes of providing combinations of network elements
(subject to change in law regarding combination obligations as described above
in Sections 2.2.5 and 2.2.6), and conditioned upon Ameritech's actual
provisioning of combinations, satisfactory OSS testing and performance
measurement results. Within 5 business days of such written notification from a
CLEC with an existing and effective Interconnection Agreement, Ameritech
shall present the CLEC with a signed Amendment to Interconnection Agreement
substantively identical to this Amendment. Within 5 business days of receipt of
the Ameritech signed Amendment to Interconnection Agreement, the CLEC shall sign
such Amendment to Interconnection Agreement and cause it to be filed with the
Commission. The signed Amendment to Interconnection Agreement between Ameritech
and the CLEC shall become effective by operation of law immediately upon filing
with the Commission (the "Effective Date").
4.0 TERM OF AMENDMENT
-------------------
4.1
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This Amendment will become effective as of the Effective Date stated above, and
will expire on September 28, 2002, which is 18 months after MPSC approval as
described in Section 3.1 above, unless the FCC approves Ameritech's application
to provide in-region interLATA service in Michigan under 47 U.S.C. 271 by June
28, 2002, which is 15 months after MPSC approval, in which event the terms of
this Amendment will automatically be extended until March 28, 2005, which is 4
years after MPSC approval as described in Section 3.1 above. In the event the
FCC approves Ameritech's application to provide in-region interLATA service in
Michigan under 47 U.S.C. 271 after June 28, 2002, but prior to March 28, 2005,
Ameritech shall have the option of extending the Amendment until March 28, 2005.
In such event, Ameritech will provide notice to the Commission and to CLEC,
within five business days of FCC approval, of its agreement to extend the
Amendment until March 28, 2005. If either party desires to negotiate a successor
agreement to the Agreement, such party must provide the other party with a
written request to negotiate such successor agreement (Request to Negotiate) not
later than 180 days prior to the expiration of this Amendment. A Request to
Negotiate does not activate the negotiation timeframe set forth in this
Amendment, nor does it shorten the life of this Amendment. The noticing Party
will delineate the items desired to be negotiated. Not later than 30 days from
receipt of said Notice to Negotiate, the receiving Party will notify the sending
Party of additional items desired to be negotiated, if any. The Parties will
begin negotiations not later than 135 days prior to expiration of this
Amendment. If the FCC approves Ameritech's application to provide in-region
interLATA service in Michigan after June 28, 2002, and Ameritech provides notice
of its agreement under this Section to extend the Amendment until March 28,
2005, CLEC may withdraw its Request to Negotiate.
4.2
The initial and extension term(s) of this Amendment will apply to the Agreement,
or successor agreements. The term of this Amendment will not, however, extend
the term of the Agreement or any successor agreement that has or will terminate
during the initial or extension term(s) of this Amendment.
4.3
This Amendment contains a group of legitimately related provisions offered by
Ameritech in the context of a Section 271 collaborative proceeding in Michigan
and as such cannot be modified by incorporating, via Section 252(i) or
otherwise, provisions from other interconnection agreements into this Amendment.
CLECs with other agreements may incorporate this Amendment into their
interconnection agreement in accordance with Section 252(i). Should CLEC opt to
incorporate any provision of this Amendment into another interconnection
agreement pursuant to Section 252(i) of the Act, the provision from this
Amendment shall expire on the date provided in Section 4.1 above and shall not
control the expiration date of the provisions of the other interconnection
agreement.
5.0 MOST FAVORED NATIONS - IN STATE ONLY
------------------------------------------
5.1
The Parties acknowledge and agree that this Amendment is the result of a state
Section 271 collaborative process in Case No. U-12320, and the result of
negotiations in that proceeding with the Commission, Ameritech and the parties
to Case No. U-12320. The parties further
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acknowledge and agree that this Amendment was therefore agreed upon outside of
the negotiation procedures of 47 U.S.C. Section 252(a)(1). (See SBC/Ameritech
Order in CC Docket No. 98-141, FCC 99-279 at Condition 43, and Note 725). The
parties further acknowledge that the terms, conditions and prices for the UNE-P
and EEL combination provisions in this Amendment and in the attached Pricing
Appendix-Combinations are nonseverable and "legitimately related" for purposes
of Section 252(i) of Xxxxx 00, Xxxxxx Xxxxxx Code.
6.0 WAIVER
------
6.1
For purposes of this Section and, for the time period(s) specified in this
Amendment, Ameritech agrees to waive the right to assert that it need not
provide pursuant to the "necessary and impair" standards of Section 251(d)(2) of
Xxxxx 00, Xxxxxx Xxxxxx Code, a network element now available under the terms of
this Amendment and/or its rights with regard to the combination of any such
network elements that are not already combined, and available under the terms of
this Amendment. CLEC agrees that the UNE-P and EEL provisions of this Amendment
are nonseverable and "legitimately related" for purposes of Section 252(i) of
Xxxxx 00, Xxxxxx Xxxxxx Code. Accordingly, CLEC agrees to take the UNE-P and EEL
provisions of this Amendment and the attached Pricing Appendix-Combinations in
their entirety, without change, alteration or modification, waiving its rights
to "pick and choose" UNE provisions from other agreements under Section 252(i)
of Xxxxx 00, Xxxxxx Xxxxxx Code. This mutual waiver of rights by the Parties
will constitute additional consideration for the Amendment.
6.2
By entering into this Amendment to obtain the benefits set forth herein in whole
or in part, CLEC expressly waives its right to challenge the terms of this
Amendment in any judicial, dispute resolution or regulatory proceeding as being
inconsistent with the product offering requirements of Section 271(c)(2)(B)(ii)
for purposes of providing combinations of network elements (subject to change in
law regarding combination obligations as described above in Sections 2.2.5 and
2.2.6). Except that CLEC expressly reserves the right to challenge Ameritech's
actual provisioning of combinations, satisfactory OSS testing and performance
measurement results; and to seek clarification or interpretation of the terms of
this Amendment through the dispute resolution process established by the
Commission or challenge in any judicial, dispute resolution or regulatory
proceeding the interpretation of this Amendment or any Amendment containing the
same or substantially similar language to this Amendment; such right
to challenge actual results or to seek clarification or interpretation or
challenge the interpretation also includes the right to appeal the final
judicial, dispute resolution or regulatory decision and to continue to pursue
pending appeals. When a final decision is rendered by the appellate court, the
affected contract provision shall be revised to reflect the result of such
appeal. Any dispute between the Parties regarding the manner in which this
Amendment should be modified to reflect the effect of the appellate court
decision shall be resolved by the Commission. Notwithstanding CLEC's waiver of
its right to contest this Amendment under Section 271(c)(2)(B)(ii) as described
above, CLEC expressly reserves the right to pursue alternate theories regarding
combinations of network elements in pending or future Section 251/252
arbitrations. Except as provided in this section, CLEC reserves the right to
pursue pending appeals and to appeal any
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032901
other state or federal regulatory decision, but, absent a stay or reversal, will
comply with any such final decision. Nothing in this Amendment limits CLEC's
right or ability to participate in any proceedings regarding the proper
interpretation and/or application of the 1996 Telecommunications Act or the
Michigan Telecommunications Act.
6.3
On January 25, 1999, the United States Supreme Court issued its opinion in AT&T
Corp. v. Iowa Utilities Board, 525 X.X. 000, 000 X. Xx. 721 (1999) and on June
1, 1999, the United States Supreme Court issued its opinion in Ameritech v. FCC,
No. 98-1381, 119 S Ct. 2016 (June 1, 1999). In addition, on November 5, 1999,
the FCC issued its Third Report and Order and Fourth Further Notice of Proposed
Rulemaking in CC Docket No. 96-98 (FCC 99-238), including the FCC's Supplemental
Order issued In the Matter of the Local Competition Provisions of the
Telecommunications Act of 1996, in CC Docket No. 96-98 (FCC 99-370) (rel.
November 24, 1999), portions of which become effective thirty (30) days
following publication of such Order in the Federal Register (February 17, 2000)
and other portions of which become effective 120 days following publication of
such Order in the Federal Register (May 17, 2000). On July 18, 2000, the United
States Court of Appeals issued its opinion in Iowa Util. Bd. v. FCC, 219 F.3d
744 (8th Cir. 2000) cert. granted 121 S.Ct 877-79 (2001). By executing this
Amendment, neither party waives any of its rights, remedies or arguments with
respect to such decisions, any remands thereof, or any federal or state
proceedings related thereto, including its right to seek legal review
or a stay of such decisions, or its rights under the Amendment.
7.0 MISCELLANEOUS
-------------
7.1
The Agreement, as amended hereby, shall remain in full force and effect until
terminated pursuant to its terms. This Amendment does not extend the term of the
Agreement. On and from the Amendment Effective Date, reference to the Agreement
in any notices, requests, orders, certificates and other documents shall be
deemed to include this Amendment, whether or not reference is made to this
Amendment, unless the context shall be otherwise specifically noted.
7.2
This Amendment may be executed in counterparts, each of which shall be deemed an
original but all of which when taken together shall constitute a single
agreement.
7.3
This Amendment, including the attached Pricing Appendix-Combinations,
constitutes the entire Amendment between the Parties and supersedes all previous
proposals, both verbal and written.
7.4
The Parties acknowledge that in no event shall any rates, terms, and conditions
set forth in this Amendment apply to any products or services purchased by CLEC
prior to the Amendment Effective Date.
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IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed
by their duly authorized representatives as of the Amendment Effective Date.
Xxxx.xxx Holding, Corp. SBC Telecommunications, Inc.
as agent for Ameritech Michigan
By: /s/ Xxxxxx Xxxxxx By: /s/ O.R. Xxxxxxx
Printed: Xxxxxx Xxxxxx Printed: O.R. Xxxxxxx
Title: EVP-Business Development Title: President-Industry Markets
Date: May 15, 2001 Date: May 25, 2001
