Exhibit 10.61
| |
Jeffrey A. Masoner
Vice President
Interconnection Services Policy & Planning | |
|
verizon |
| |
| Wholesale Markets |
| 1310 N Court House Rd |
| 91h fl, RM 9E104 |
| Arlington, VA 22201 |
| |
| Tel. 703 974-4610Fax 703 974-0314 |
| jeffrey.a.masoner@verizon.corr |
August 29, 2005
Richard N. Koch
President
RNK, Inc. d/b/a RNK Telecom
333 Elm Street
Suite 310
Dedham, MA 02026
Re: Requested Adoption Under Section 252(i) of the TA96
Dear Mr. Koch:
Verizon New Jersey Inc., f/k/a Bell Atlantic - New Jersey, Inc. (“Verizon”), a NewJersey corporation, with principal place of business at 540 Broad Street, Newark,NJ 07101, has received your letter stating that, under Section 252(i) of theTelecommunications Act of 1996 (the “Act”), RNK, Inc. d/b/a RNK Telecom(“RNK”), a Massachusetts corporation, with principal place of business at 333Elm Street, Suite 310, Dedham, MA 02026 wishes to adopt the terms of theInterconnection Agreement between Sprint Communications Company L.P. (“Sprint”) and Verizon that was approved by the New Jersey Board of PublicUtilities (the “Commission”) as an effective agreement in the State of NewJersey, as such agreement exists on the date hereof (including any effective andapproved amendments thereto) after giving effect to operation of law (the“Terms”). I understand RNK has a copy of the Terms. Please note the following with respect to RNK’s adoption of the Terms.
| | |
1. | By RNK’s countersignature on this letter, RNK hereby represents andagrees to the following six points: |
| | |
| A. | RNK adopts (and agrees to be bound by) the Terms of theSprint/Verizon agreement for interconnection as it is in effect on the |
1
| | |
| | date hereof after giving effect to operation of law, and in applyingthe Terms, agrees that RNK shall be substituted in place of SprintCommunications Company L.P. and Sprint in the Terms whereverappropriate. |
| |
| B. | For avoidance of doubt, adoption of the Terms does not includeadoption of any provision imposing an unbundling obligation onVerizon that no longer applies to Verizon under the Report andOrder and Order on Remand (FCC 03-36) released by the Federal Communications Commission (“FCC”) on August 21, 2003 in CC Docket Nos. 01-338, 96-98, 98-147 (“Triennial Review Order”), the Order on Remand in WC Docket No. 04-313 and CC Docket No. 01-338, released by the FCC on February 4, 2005 (the “TRO Remand Order”), or that is otherwise not required by both 47 U.S.C. Section 251(c)(3) and 47 C.F.R. Part 51. Moreover, Verizon, on February 20, 2004, filed a petition at the Commission to arbitrate amendments to interconnection agreements (including the Terms) with respect to the Triennial Review Order (“TRO Arbitration”). If Sprint is a party to the TRO Arbitration at the time the Commission issues an effective order approving an amendment with respect to the Triennial Review Order in the TRO Arbitration (an “Approved Amendment”): 1) the terms of such Approved Amendment shall be deemed to amend this adoption effective on the effective date ofsuch Commission order, 2) RNK agrees to bebound by the terms of such Approved Amendment effective on theeffective date of such Commission order, and 3) Verizon and RNKshall execute an amendment to this adoption to memorialize thatthis adoption is amended by the terms of such ApprovedAmendment effective on the effective date of such Commissionorder; provided, however, failure by either party to do so shall notbe cited as a basis for contesting the effectiveness of the provisionsin 1) and 2) above. |
| | |
| C. | Notice to RNK and Verizon as may be required under the Termsshall be provided as follows: |
| | |
| | To RNK, Inc. d/b/a RNK Telecom: |
2
| | |
| | Attention: Douglas Denny-Brown |
| | General Counsel |
| | 333 Elm Street |
| | Dedham, MA 02026 |
| | Telephone Number: (781) 613-6103 |
| | Facsimile Number: (781) 297-9836 |
| | Internet Address:gcounsel@rnktel.com |
| To Verizon: |
| | |
| | Director-Contract Performance & Administration
Verizon Wholesale Markets
600 Hidden Ridge
HQEWMNOTICES
Irving, TX 75038
Telephone Number: (972) 718-5988
Facsimile Number: (972) 719-1519
Internet Address:wmnotices@verizon.com |
| | |
| with a copy to: |
Vice President and Associate General Counsel
Verizon Wholesale Markets
1515 N. Court House Road
Suite 500
Arlington, VA 22201
Facsimile: (703) 351-3664
|
| | |
| | |
| D. | RNK represents and warrants that it is a certified provider of local telecommunications service in the State of New Jersey, and that its adoption of the Terms will cover services in the State of New Jersey only. |
| | |
| E. | In the event an interconnection agreement between Verizon andRNK is currently in effect in the State of New Jersey (the “OriginalICA”), this adoption shall be an amendment and restatement of theoperating terms and conditions of the Original ICA, and shallreplace in their entirety the terms of the Original ICA. This adoptionis not intended to be, nor shall it be construed to create, a novationor accord and satisfaction with respect to the Original ICA. Any outstanding payment obligations of the parties that were incurredbut not fully performed under the Original ICA shall constitutepayment obligations of the parties under this adoption. |
| | |
| F. | Verizon’s standard pricing schedule for interconnection agreementsin the State of New Jersey (as such schedule may be amended |
3
| | |
| | from time to time) (attached as Appendix A hereto) shall apply toRNK’s adoption of the Terms; provided, however, that if the Terms memorialize acceptance of Verizon’s offer of an optional reciprocalcompensation rate plan for non-Internet traffic subject to Section 251(b)(5) pursuant to the industry letter described in footnote 2 ofthis Letter, then the optional reciprocal compensation rate plan inthe Terms shall apply to this adoption instead of the reciprocalcompensation rates set forth in Appendix A. RNK should note thatthe aforementioned pricing schedule may contain rates for certainservices the terms for which are not included in the Terms or thatare otherwise not part of this adoption, and may include phrases orwording not identical to those utilized in the Terms. In an effort toexpedite the adoption process, Verizon has not deleted such ratesfrom the pricing schedule or attempted to customize the wording inthe pricing schedule to match the Terms. However, the inclusion ofsuch rates in no way obligates Verizon to provide the subject services and in no way waives Verizon’s rights, and the use ofslightly different wording or phrasing in the pricing schedule doesnot alter the obligations and rights set forth in the Terms. |
| | |
2. | RNK’s adoption of the Sprint Terms shall become effective on August 19,2005. Verizon shall file this adoption letter with the Commission promptlyupon receipt of an original of this letter countersigned by RNK as to thepoints set out in Paragraph One hereof. The term and terminationprovisions of the Sprint/Verizon agreement shall govern RNK’s adoption ofthe Terms. |
| |
3. | As the Terms are being adopted by you pursuant to your statutory rightsunder section 252(i), Verizon does not provide the Terms to you as eithera voluntary or negotiated agreement. The filing and performance byVerizon of the Terms does not in any way constitute a waiver by Verizonof any position as to the Terms or a portion thereof, nor does it constitute a waiver by Verizon of all rights and remedies it may have to seek review of the Terms, or to seek review in any way of any provisions included inthese Terms as a result of RNK’s 252(i) election. |
| |
4. | Nothing herein shall be construed as or is intended to be a concession oradmission by Verizon that any provision in the Terms complies with the rights and duties imposed by the Act, the decisions of the FCC and theCommission, the decisions of the courts, or other law, and Verizonexpressly reserves its full right to assert and pursue claims arising from orrelated to the Terms. |
| |
5. | Verizon reserves the right to deny RNK’s application of the Terms, in whole or in part, at any time: |
4
| | |
| A. | when the costs of providing the Terms to RNK are greater than thecosts of providing them to Sprint; |
| | |
| B. | if the provision of the Terms to RNK is not technically feasible;and/or |
| | |
| C. | to the extent that Verizon otherwise is not required to make theTerms available to RNK under applicable law. |
| | |
6. | For avoidance of doubt, please note that adoption of the Terms will notresult in reciprocal compensation payments for Internet traffic. Verizonhas always taken the position that reciprocal compensation was not due tobe paid for Internet traffic under section 251(b)(5) of the Act. Verizon’s position that reciprocal compensation is not to be paid for Internet trafficwas confirmed by the FCC in the Order on Remand and Report and Orderadopted on April 18, 2001 (“FCC Internet Order”),which held that Internet traffic constitutes “information access” outside the scope of the reciprocal compensation obligations set forth in section 251(b)(5) of the Act.1 Accordingly, any compensation to be paid for Internet traffic will be handled pursuant to the terms of theFCC Internet Order,not pursuant to adoption of the Terms.2 Moreover, in light of theFCC Internet Order,evenif the Terms include provisions invoking an intercarrier compensationmechanism for Internet traffic, any reasonable amount of time permittedfor adopting such provisions has expired under the FCC’s rulesimplementing section 252(i) of the Act.3 In fact, theFCC Internet Ordermade clear that carriers may not adopt provisions of an existing interconnection agreement to the extent that such provisions providecompensation for Internet traffic.4 |
| | |
7. | Should RNK attempt to apply the Terms in a manner that conflicts withParagraph Three through Paragraph Six above, Verizon reserves its rightsto seek appropriate legal and/or equitable relief. |
| | |
8. | In the event that a voluntary or involuntary petition has been or is in the future filed against RNK under bankruptcy or insolvency laws, or any lawrelating to the relief of debtors, readjustment of indebtedness, debtor reorganization or composition or extension of debt (any such proceeding, |
Order on Remand and Report and Order, In the Matters of: Implementation of the Local Competition Provisions in the Telecommunications Act of 1996 and Intercarrier Compensation for ISP-Bound Traffic, CC Docket No. 99-68 (rel. April 27, 2001) (“FCC Remand Order”)44,remanded, WorldCom, Inc. v. FCC,No. 01-1218 (D.C. Cir. May 3, 2002). Although the D.C. Circuit remanded theFCC Remand Orderto permit the FCC to clarify its reasoning, it left the order in place asgoverningfederal law.See WorldCom, Inc. v. FCC,No. 01-1218, slip op. at 5 (D.C. Cir. May 3, 2002).
For your convenience, an industry letter distributed by Verizon explaining its plans to implement theFCC Internet Ordercan be viewed at Verizon’s Customer Support Website at URLwww.verizon.com/wise(select Verizon East Customer Support, Business Resources, Customer Documentation, Resources, Industry Letters, CLEC, May 21, 2001 Order on Remand).
3See,e.g., 47 C.F.R. Section 51.809(c).
4FCC Internet Orderif 82.
5
| |
| an “Insolvency Proceeding”), then: (i) all rights of Verizon under such laws,including, without limitation, all rights of Verizon under 11 U.S.C. § 366,shall be preserved, and RNK’s adoption of the Verizon Terms shall in noway impair such rights of Verizon; and (ii) all rights of RNK resulting fromRNK’s adoption of the Verizon Terms shall be subject to and modified byany Stipulations and Orders entered in the Insolvency Proceeding,including, without limitation, any Stipulation or Order providing adequateassurance of payment to Verizon pursuant to 11 U.S.C. § 366. |
6
SIGNATURE PAGE
Please arrange for a duly authorized representative of RNK to sign this letter inthe space provided below and return it to Verizon.
Sincerely,
VERIZON NEW JERSEY INC.
Jeffrey A. Masoner
Vice President
Interconnection Services Policy & Planning
Reviewed and countersigned as to points A, B, C, D, E and F of Paragraph 1 andas to Paragraph 2. By execution, RNK does not necessarily assent agreement,and in certain circumstances, disagrees with Verizon’s positions, interpretations of law, and/or statements in Paragraphs 3, 4, 5, 6, 7 and 8 and reserves all rightsthat may be affected by such.
RNK, INC. D/B/A RNK TELECOM
| |
/s/ Richard N. Koch | |
| |
Richard N. Koch |
|
President |
|
c: K. Robertson - Verizon |
7
