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EXHIBIT 10.27
INTERCONNECTION AGREEMENT UNDER SECTIONS 251 AND 252 OF
THE TELECOMMUNICATIONS ACT OF 1996
BY AND BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND
OPTEL (TEXAS) TELECOM, INC.
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TABLE OF CONTENTS
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SWBT/OPTEL AGREEMENT TAB 1
APPENDICES
800 TAB 2
911 - TEXAS TAB 3
AIN TAB 4
BCR TAB 5
CH TAB 6
CNAM TAB 7
DA TAB 8
DCO TAB 9
FGA TAB 10
HOST TAB 11
ITR TAB 12
LIDB-AS TAB 13
LIDB-V TAB 14
OS TAB 15
OSS TAB 16
PORT TAB 17
TP TAB 18
RECORD TAB 19
RESALE TAB 20
UNE TAB 21
WIRELESS TAB 22
SS7 TAB 23
MAP TAB 24
WP TAB 25
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TABLE OF CONTENTS
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1.0 DEFINITIONS Page 5
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2.0 INTERPRETATION & CONSTRUCTION Page 8
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3.0 IMPLEMENTATION SCHEDULE & INTERCONNECTION
ACTIVATION DATES Page 8
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4.0 INTERCONNECTION PURSUANT TO SECTION 251(c)(2) Page 8
4.1 Scope Page 8
4.2 Interconnection Coverage Page 9
4.3 Methods for Interconnection Page 10
4.4 Physical Architecture Page 15
4.5 Technical Specifications Page 16
4.6 Interconnection in Additional Metropolitan Exchange Areas Page 16
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5.0 TRANSMISSION & ROUTING OF TELEPHONE EXCHANGE SERVICE
TRAFFIC PURSUANT TO SECTION 251(c)(2) Page 17
5.1 Scope Page 17
5.2 Responsibilities of the Parties Page 17
5.3 Reciprocal Compensation for Termination of Local Traffic Page 18
5.4 Reciprocal Compensation for Transit Traffic Page 19
5.5 Reciprocal Compensation for Termination of IntraLATA
Interexchange Traffic Page 20
5.6 Compensation for Origination and Termination of Switched
Access Service Traffic to or From an IXC Page 21
5.7 Billing Arrangements for Compensation for Termination of
IntraLATA, Local, Transit & Optional Calling Area Traffic Page 22
5.8 Compensation for "Porting" Optional Calling Area Numbers Page 24
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6.0 TRANSMISSION & ROUTING OF EXCHANGE ACCESS TRAFFIC Page 24
6.1 Scope of Traffic Page 24
6.2 Trunk Group Architecture & Traffic Routing Page 24
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7.0 TRANSPORT & TERMINATION OF OTHER TYPES OF TRAFFIC Page 24
7.1 Information Services Traffic Page 24
7.2 Line Status Verification/Busy Line Interrupt Traffic Page 24
7.3 Wireless Traffic Page 25
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8.0 SIGNALING Page 26
9.0 NUMBERING Page 26
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10.0 RESALE Page 28
10.1 Availability of SWBT Retail Telecommunications
Services for Resale Page 28
10.2 Availability of Optel Retail Telecommunications
Services for Resale Page 28
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11.0 UNBUNDLED NETWORK ELEMENTS Page 28
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12.0 NOTICE OF CHANGES Page 28
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13.0 COLLOCATION Page 29
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14.0 NUMBER PORTABILITY Page 29
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15.0 DIALING PARITY Page 29
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16.0 ACCESS TO RIGHTS-OF-WAY Page 29
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17.0 DATABASE ACCESS Page 30
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18.0 INTERCEPT REFERRAL ANNOUNCEMENTS Page 30
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19.0 COORDINATED REPAIR CALLS Page 30
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20.0 OTHER SERVICES Page 31
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21.0 GENERAL RESPONSIBILITIES OF THE PARTIES Page 32
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22.0 EFFECTIVE DATE, TERM & TERMINATION Page 33
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23.0 DISCLAIMER OF REPRESENTATIONS & WARRANTIES Page 34
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24.0 CHANGES IN END USER LOCAL EXCHANGE SERVICE
PROVIDER SELECTION Page 35
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25.0 SEVERABILITY Page 35
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26.0 INDEMNIFICATION Page 35
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27.0 LIMITATION OF LIABILITY Page 36
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28.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES Page 37
28.1 Certain Definitions Page 37
28.2 Specified Performance Breach Page 38
28.3 Liquidated Damages Page 38
28.4 Limitations Page 39
28.5 Sole Remedy Page 39
28.6 Records Page 39
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29.0 REGULATORY APPROVAL Page 39
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30.0 MISCELLANEOUS Page 40
30.1 Authorization Page 40
30.2 Compliance & Certification Page 40
30.3 Law Enforcement Page 40
30.4 Independent Contractor Page 41
30.5 Force Majeure Page 41
30.6 Confidentiality Page 42
30.7 Governing Law Page 43
30.8 Taxes Page 43
30.9 Non-Assignment Page 45
30.10 Non-Waiver Page 45
30.11 Audits Page 45
30.12 Disputed Amounts Page 46
30.13 Disputed Resolution Page 46
30.14 Notices Page 47
30.15 Publicity & Use of Trademarks or Service Marks Page 47
30.16 Section 252(i) Obligations Page 48
30.17 Joint Work Product Page 48
30.18 Interim Rates Page 48
30.19 Intervening Law Page 49
30.20 No Third Party Beneficiaries; Disclaimer of Agency Page 49
30.21 No License Page 49
30.22 Survival Page 49
30.23 Scope of Agreement Page 50
30.24 Entire Agreement Page 50
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INTERCONNECTION AGREEMENT
This Interconnection Agreement ("Agreement") is made under Sections 251 and
252 of the Telecommunications Act of 1996 and the Texas Public Utility
Regulatory Act of 1995, by and between Southwestern Bell Telephone Company, a
Missouri Corporation ("SWBT"), and Optel (Texas) Telecom, Inc., a Delaware
Corporation (Optel).
WHEREAS, the Parties want to interconnect their networks at mutually agreed
upon points of interconnection to provide, directly or indirectly, Telephone
Exchange Services and Exchange Access to residential and business end users
predominantly over their respective telephone exchange service facilities in
Texas.
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 ("the Act") and additional
services as set forth herein; and
WHEREAS, for purposes of this Agreement, the Parties intend to operate
where SWBT is the incumbent local exchange carrier and Optel, a competitive
local exchange carrier, is certified by the Public Utility Commission of Texas,
as required.
NOW, THEREFORE, Optel and SWBT hereby agree as follows:
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.
1.2 "Affiliate" is as defined in the Act.
1.3 "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.
1.4 "Busy Line Interrupt" or "BLI" is performed when one Party's operator
bureau interrupts a telephone call in progress after Line Status Verification
has occurred. The operator bureau will interrupt the busy line and inform the
called party that there is a call waiting.
1.5 "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.
1.6 "Central Office Switch" means a single switching system within the
public switched telecommunications network, including the following:
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(i) "End Office Switches" which are switches where end
user Telephone Exchange Services are directly connected
and offered; and
(ii) "Tandem Office Switches" or "Tandems" which are
switches used to connect and switch trunk circuits
between Central Office Switches.
Central Office Switches may be employed as combination End Office/Tandem Office
switches.
1.7 "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.
1.8 "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.
Collocation may include microwave transmission equipment.
1.9 "Commission" means the Public Utility Commission of Texas.
1.10 "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. Unless otherwise
agreed by the Parties, the CCS used by the Parties shall be SS7.
1.11 "Cross Connect" means the unbundled network element which is used to
provide connection between: i) the SWBT distribution frame and an unbundled
network element component, or ii) two unbundled network element components, or
iii) the SWBT distribution frame and the tie cable termination point for
collocation.
1.12 "Dialing Parity" is as defined in the Act. As used in this Agreement,
Dialing Parity refers to both Local Dialing Parity and Toll Dialing Parity.
1.13 "Digital Signal Level" means one of several transmission rates in the
time-division multiplex hierarchy.
1.14 "Digital Signal Level 0" or "DS0" means the 64 Kbps zero-level signal
in the time-division multiplex hierarchy.
1.15 "Digital Signal Level 1" or "DS1" means the 1.544 Mbps first-level
signal in the time-division multiplex hierarchy.
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1.16 "Digital Signal Level 3" or "DS3" means the 44.736 Mbps third-level
in the time-division multiplex hierarchy.
1.17 "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.
1.18 "Exchange Access" is as defined in the Act.
1.19 "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 CRIS Exchange Message
Record.
1.20 "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.
1.21 "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.
1.22 "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.
1.23 "Interexchange Carrier" or "IXC" means a carrier that provides the
interexchange portion of interLATA or intraLATA Toll 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 from SWBT.
1.24 "Line Status Verification" or "LSV" or "Busy Line Verify" or "BLV" is
performed when one Party's end user requests assistance from the operator bureau
to determine if the called line of the other Party is in use.
1.25 "Local Traffic," is as defined in section 5.1.2.
1.26 "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).
1.27 "MECAB" refers to the Multiple Exchange Carrier Access Billing
(MECAB) 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
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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.
1.28 "MECOD" refers to the Multiple Exchange Carriers Ordering and Design
(MECOD) 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.
1.29 "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.
1.30 "Metropolitan Exchange Area" means a geographical area defined in
SWBT current tariffs effective as a metropolitan exchange local calling area.
For example, Dallas, Ft. Worth, Houston, Little Rock, Oklahoma City, St. Louis,
Austin and would be examples of Metropolitan Exchange Areas.
1.31 "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.
1.32 "Routing point" means a location which SWBT or Optel has designated
on its own network as the homing (routing) point for traffic in bound for one or
more of its NPA-NXX codes. The Routing Point is also used to calculate mileage
measurements for the distance-sensitive transport element charges.
1.33 "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.
1.34 "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 Gbps.
1.35 "Telephone Exchange Service "is as defined in the Act.
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1.36 "Wire Center" means an occupied structure or portion thereof which
serves as a Routing Point for Telephone Exchange and 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 order or arbitration award purporting to apply the provisions of the
federal Act, the Parties reserve all of their rights and remedies.
3.0 IMPLEMENTATION SCHEDULE AND INTERCONNECTION ACTIVATION DATES
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
the transmission and routing of Telephone Exchange Service traffic and Exchange
Access traffic shall be established on or before the corresponding
"Interconnection Activation Date" shown for each such Metropolitan Exchange Area
on Appendix DCO attached hereto and incorporated by reference. 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 4.6.
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. Appendix ITR attached hereto and incorporated by reference
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),
E911/911 traffic (as described in Appendix 911). Use of this physical connection
shall be limited to the trunk groups described in Appendix ITR.
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4.2 INTERCONNECTION COVERAGE
The Parties shall provide for interoperation of their networks and shall
interconnect their facilities as stated below:
4.2.1. Optel shall interconnect with SWBT's facilities as follows:
a. In each SWBT exchange area in which Optel chooses to offer
local exchange service, Optel, at a minimum, will
interconnect its network facilities to: (a) each SWBT access
tandem(s), and (b) to either each SWBT local tandem(s) or
each SWBT end office(s) ("EO") subtending that local
tandem(s). SWBT EOs and tandems through which Optel will
terminate its traffic will be called SWBT Interconnection
Wire Centers and are identified in Appendix DCO. As Optel
initiates Exchange Service operations in additional SWBT
exchange areas, SWBT and Optel shall agree upon additional
SWBT Interconnection Wire Centers in each new exchange area.
Optel agrees that if SWBT establishes additional local
tandems in an exchange area within which Optel offers local
exchange service, Optel will establish new trunk groups on
its existing interconnection facilities so that SWBT may
interconnect Optel trunks to the additional local tandem(s).
b. Interconnection to a SWBT local tandem(s) will provide Optel
local access to the SWBT end offices and NXXs which subtend
that tandem(s), and to other Local Exchange Carriers
("LECs") (subject to Section 5.4) which are connected to
that tandem(s). Interconnection to SWBT EO(s) will provide
Optel access only to the NXXs served by that individual
EO(s) to which Optel interconnects.
c. Interconnection to a SWBT access tandem will provide Optel
interexchange access to SWBT, IXCs, LECs and CMRS 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 Optel access to SWBT's EOs
with the same functionality described in (b) above.
d. Where Optel 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.
4.2.2. SWBT shall interconnect with Optel's facilities under terms and
conditions no less favorable to Optel than those identified in Section 4.2.1
above.
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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 of
each Tandem and End Office identified in Appendix DCO making use of facilities
they own or lease from a third party.
4.3.1 Physical Collocation Interconnection ("PCI") - Where Optel
provides fiber cable and connects to its equipment located in the SWBT Wire
Center. Optel owns and maintains Optel's equipment.
4.3.2 Virtual Collocation Interconnection ("VCI") - Where Optel
provides fiber cable to SWBT for connection to Optel-designated basic
transmission equipment dedicated solely for Optel's use, located in the SWBT
Interconnection Wire Center. SWBT owns and maintains the basic transmission
equipment at the SWBT Interconnection Wire Center. This option shall be
consistent with the terms of SWBT's virtual collocation tariff.
4.3.3 SONET-Based Interconnection ("SBI") - Where Optel provides
fiber cable to SWBT for connection to SWBT-designated basic transmission
equipment located at the SWBT Interconnection Wire Center (SIWC) and dedicated
solely for Optel's use. SWBT owns and maintains the basic transmission
equipment. This option shall be consistent with SWBT's SBI tariff.
4.3.4 Leased Facility Interconnection ("LFI") - Where facilities
exist, either Party may lease facilities from the other Party.
4.3.5 Mid-span Fiber Interconnection ("MSFI") - Where the Parties
agree to interconnect through SONET technology, a Fujitsu originating line
terminating multiplexer fiber optic terminal ("FOT") shall be used. Mid-Span
Fiber Interconnection (MSFI) between Southwestern Bell Telephone (SWBT) and LSP
can occur at any mutually agreeable, economically and technically feasible point
between LSP's premises and a SWBT tandem or end office. This interconnection
will be on a point-to-point SONET system over single mode fiber optic cable.
4.3.5.1 MSFI may be used to provide interconnection trunking
as defined in Attachment ITR.
4.3.5.2 There are two basic mid-span interconnection designs:
a. Design One: LSP's fiber cable and SWBT's fiber
cable are connected at an economically and
technically feasible point between the LSP
location and the last entrance manhole at the SWBT
central office.
The Parties may agree to a location with access to
an existing SWBT fiber termination panel. In these
cases, the network interconnection point (POI)
shall be designated outside of the
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SWBT building, even though the LSP fiber may be
physically terminated on a fiber termination panel
inside of a SWBT building. In this instance, LSP
will not incur fiber termination charges and SWBT
will be responsible for connecting the cable to
the SWBT facility.
The Parties may agree to a location with access to
an existing LSP fiber termination panel. In these
cases, the network interconnection point POI)
shall be designated outside of the LSP building,
even though the SWBT fiber may be physically
terminated on a fiber termination panel inside of
an LSP building. In this instance, SWBT will not
incur fiber termination charges and LSP will be
responsible for connecting the cable to the LSP
facility.
If a suitable location with an existing fiber
termination panel cannot be agreed upon, LSP and
SWBT shall mutually determine provision of a fiber
termination panel housed in an outside, above
ground, cabinet placed at the physical POI.
Ownership and the cost of provisioning the panel
will be negotiated between the two parties.
b. Design Two: LSP will provide fiber cable to the
last entrance manhole at the SWBT tandem or end
office switch with which LSP wishes to
interconnect. LSP will provide a sufficient length
of fiber optic cable for SWBT to pull the fiber
cable to the SWBT cable vault for termination on
the SWBT fiber distribution frame (FDF). In this
case the POI shall be at the manhole location. In
this instance, LSP will not incur fiber
termination charges and SWBT will be responsible
for connecting the cable to the SWBT facility.
Each Party is responsible for designing,
provisioning, ownership and maintenance of all
equipment and facilities on its side of the POI.
Each Party is free to select the manufacturer of
its Fiber Optic Terminal (FOT). Neither Party will
be allowed to access the Data Communication
Channel (DCC) of the other Party's FOT. The
Parties will work cooperatively to achieve
equipment compatibility.
4.3.5.3 The Parties will mutually agree upon the precise terms of
each mid-span interconnection facility. These terms will cover the technical
details of the interconnection as well as other network interconnection,
provisioning and maintenance issues.
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4.3.5.4 The LSP location includes FOTs, multiplexing and fiber
required to take the optical signal handoff from SWBT for interconnection
trunking as outlined in Appendix ITR.
4.3.5.5 The fiber connection point may occur at several locations:
a. a location with an existing SWBT fiber termination
panel. In this situation, the POI shall be outside the
SWBT building which houses the fiber termination panel;
b. a location with access to an existing LSP fiber
termination panel. In these cases, the network
interconnection point (POI) shall be designated outside
of the LSP building, even though the SWBT fiber may be
physically terminated on a fiber termination panel
inside a LSP building;
c. a location with no existing SWBT fiber termination
panel. In this situation, SWBT and LSP will negotiate
provisioning, maintenance and ownership of a fiber
termination panel and above ground outside cabinet as a
POI and for connection of the fiber cables;
d. a manhole outside of the SWBT central office. In this
situation, LSP will provide sufficient fiber optic
cable for SWBT to pull the cable into the SWBT cable
vault for termination on the SWBT FDF. The POI will be
at the manhole and SWBT will assume maintenance
responsibility for the fiber cabling from the manhole
to the FDF.
4.3.5.6 The SWBT tandem or end office switch includes all SWBT
FOT, multiplexing and fiber required to take the optical signal hand-off
provided from LSP for interconnection trunking as outlined in Appendix ITR.
This location is SWBT's responsibility to provision and maintain.
4.3.5.7. In both designs, LSP and SWBT will mutually agree on the
capacity of the FOT(s) to be utilized. The capacity will be based on equivalent
DS1s that contain trunks and interLATA traffic. Each Party will also agree upon
the optical frequency and wavelength necessary to implement the interconnection.
The Parties will develop and agree upon methods for the capacity planning and
management for these facilities, terms and conditions for over provisioning
facilities, and the necessary processes to implement facilities as indicated
below. These methods will meet quality standards as mutually agreed to by LSP
and SWBT.
4.3.5.8 AVOIDANCE OF OVER PROVISIONING - Underutilization is the
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inefficient deployment and use of the network due to forecasting a need for more
capacity than actual usage requires, and results in unnecessary costs for SONET
systems. To avoid over provisioning, the Parties will agree to joint facility
growth planning as detailed below.
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4.5.3.9 JOINT FACILITY GROWTH PLANNING - The initial fiber optic
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system deployed for each interconnection shall be the smallest standard
available. For SONET this is an OC-3 system. The following list the criteria and
processes needed to satisfy additional capacity requirements beyond the initial
system.
a. Criteria:
- Investment is to be minimized;
- Facilities are to be deployed in a "just in time"
fashion.
b. Processes
- discussions to provide relief to existing
facilities will be triggered when either Party
recognizes that the overall system facility
(DS1s) is at 90% capacity;
- both Parties will perform a joint validation to
ensure current trunks have not been over-
provisioned. If any trunk groups are over-
provisioned, trunks will be turned down as
appropriate. If any trunk resizing lowers the fill
level of the system below 90%, the growth planning
process will be suspended and will not be
reinitiated until a 90% fill level is achieved.
Trunk design blocking criteria described in
Appendix ITR will be used in determining trunk
group sizing requirements and forecasts;
- if based on the forecasted equivalent DS1 growth,
the existing fiber optic system is not projected
to exhaust within one year, the Parties will
suspend further relief planning on this
interconnection until a date one year prior to the
projected exhaust date. If growth patterns change
during the suspension period, either Party may re-
initiate the joint planning process;
- if the placement of a minimum size FOT will not
provide adequate augmentation capacity for the
joint forecast over a two year period, and the
forecast appears reasonable based upon history,
the next larger system may be deployed. In the
case of a SONET system, the OC-3 system could be
upgraded to an OC-12. If the forecast does not
justify a move to the next larger system, another
minimal size system (such as on OC-3) could be
placed. This criteria assumes both Parties have
adequate fibers for either scenario. If adequate
fibers do not exist, both Parties would negotiate
placement of additional fibers;
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- both Parties will negotiate a project service date
and corresponding work schedule to construct
relief facilities in an effort to achieve "just in
time" deployment;
- the joint planning process/negotiations should be
completed within two months of identification of
90% fill.
4.3.6 Wireless Interconnection - Where the Parties agree that either
Party may utilize a wireless technology, including 18 GHz, 11 GHz, 36 GHz or
other microwave transmission equipment, to provide its portion of the
interconnection transmission facility. Should Optel seek this interconnection
method, the Parties shall mutually determine how such interconnection shall be
accomplished.
4.3.7 The Parties may agree to utilize other Interconnection Methods.
4.4 PHYSICAL ARCHITECTURE. 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 one physical architecture plan per Metropolitan Serving Area.
The two architecture arrangements, End Point Meet and 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.
4.4.1 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 transport facilities to provide its trunking as set forth in
Appendix ITR. Each Party will be responsible for the appropriate sizing,
operation, and maintenance of its own transport facilities. If initially
deployed as an End Point Architecture, the deployment architecture may be
migrated or groomed, upon mutual agreement, to a Mid-Point Meet architecture.
4.4.2 Mid-Point Meet. Using the Mid-Point 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 transport
all trunking to its side of the NIP utilizing any method of interconnection
described in Section 4.3 above. Each Party is responsible for the appropriate
sizing, operation, and maintenance of the transport facility and trunking to the
NIP.
4.4.2.1 A second NIP can be established to eliminate a
"single point of failure" when mutually agreed upon. The establishment of the
second NIP should 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.
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4.4.2.2 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 to the EO, then that
collocation will be designated 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. 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
responsible for the transport facility on their side of that NIP.
4.4.2.3 Unless otherwise mutually agreed upon, when Mid-
Point Meet architecture has been deployed, it will remain as the architecture of
choice during the term of this Agreement.
4.5 TECHNICAL SPECIFICATIONS
4.5.1 Optel and SWBT shall work cooperatively to install and maintain
a reliable network. Optel 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 Optel 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 listed
in Appendix TP attached hereto. Appendix TP will assist the Parties in meeting
their respective Interconnection responsibilities. Copies of the publications
listed in Appendix TP have been or shall be provided to Optel by SWBT.
4.6 INTERCONNECTION IN ADDITIONAL METROPOLITAN EXCHANGE AREAS
4.6.1 If Optel decides to offer Telephone Exchange Services in any
other Metropolitan Exchange Areas in which SWBT also offers Telephone Exchange
Services, Optel shall provide written notice to SWBT of the need to establish
Interconnection in such Metropolitan Exchange Areas pursuant to this Agreement.
4.6.2 The notice provided in Section 4.6.1 shall include: (i) the
initial Routing Point Optel has designated in the Metropolitan Exchange Area;
(ii) Optel's requested Interconnection Activation Date; and (iii) a non-binding
forecast of Optel's trunking requirements.
4.6.3 Unless otherwise agreed by the Parties, the Parties shall
designate the Wire Center that Optel has identified as its initial Routing Point
in the Metropolitan Exchange Area as Optel Interconnection Wire Center ("IWC")
in that Metropolitan Exchange Area and shall designate the SWBT Tandem Office
Wire Center within the Metropolitan Exchange Area nearest to the IWC
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(as measured in airline miles utilizing the V&H coordinates method) as the SWBT
Interconnection Wire Center (SIWC) in that Metropolitan Exchange Area.
4.6.4 Unless otherwise agreed by the Parties, the Interconnection
Activation Date in each new Metropolitan Exchange Area shall be as soon as
reasonably possible, but no later than the one-hundred and fiftieth (150th) day
following the date on which Optel 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 Optel's notice, SWBT and Optel shall confirm their
respective Wire Centers to be Interconnected and the Interconnection Activation
Date for the new Metropolitan Exchange Area by attaching a supplementary
schedule to Appendix DCO.
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 traffic
between the Parties' respective end users.
5.1.1 For purposes of compensation under this Agreement, the
telecommunications traffic traded between Optel and SWBT will be classified as
either Local Traffic, Transit Traffic, Optional Calling Area Traffic, IntraLATA
Interexchange Traffic, InterLATA Interexchange Traffic, or FGA 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 Parties agree that, notwithstanding the classification of
traffic under this Agreement, either Party is free 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 the call: (i) 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. In no event shall the area in
which the Parties exchange Local Traffic be reduced in geographic scope during
the term of this Agreement.
5.2 RESPONSIBILITIES OF THE PARTIES
5.2.1 Each Party to this Agreement will be responsible for the
accuracy and quality of its data as submitted to the respective Parties
involved.
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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).
5.2.3 If the percentage of calls passed with CPN is greater than
ninety percent (90%), all calls exchanged without CPN information will be billed
as either local traffic or intraLATA interexchange 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 ninety percent (90%), all calls
passed without CPN will be billed as if the traffic were intraLATA interexchange
traffic.
5.2.4 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.
5.2.5 Where one Party is passing CPN but the other party is not
properly receiving information, the Parties will cooperate to rate the traffic
correctly.
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 on an interim basis as
provided in Section 30.18.
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 Served 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
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office switching and line termination functions
necessary to complete the transmission.
5.3.3.2 An End Office Served 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.
5.3.4 LOCAL TRAFFIC INTERCONNECTION RATES
PRICES
TANDEM SWITCHING $.002453* / MOU*
TANDEM TRANSPORT $.000474* / MOU (ZONES A OR B)
$.000693* (ZONE C)
END OFFICE SWITCHING $.002903* / MOU
ZONE A SWBT RATE GROUPS 7,8/1/
ZONE B SWBT RATE GROUPS 4,5,6/1/
ZONE C SWBT RATE GROUPS 1,2,3/1/
* Interim rates in accordance with Section 30.18. The applicable Tandem rate
shall be determined by the Zone in which the terminating company end office is
located.
THE APPLICABLE TANDEM TRANSPORT RATES SHALL BE DETERMINED BY THE ZONE IN WHICH
THE TERMINATING END OFFICE IS LOCATED.
5.3.4.1 Bill and Keep will be the reciprocal compensation
arrangement for the first nine (9) months after the date upon which the first
commercial call is terminated between SWBT and Optel in Texas. The reciprocal
compensation rates as adopted herein apply to calls that originate and terminate
within the mandatory single or multiexchange local calling area of SWBT
including the mandatory EAS areas served by SWBT. Bill and Keep applies only to
Local Traffic and does not include Transit nor Optional Calling Area Traffic.
5.4 RECIPROCAL COMPENSATION FOR TRANSIT TRAFFIC
5.4. Transit Traffic allows one Party to send traffic to a third
party network through the other Party's tandem. A Transit Traffic rate element
applies to all traffic between a Party and a
_________________
/1/ These rate groups are the ones identified in SWBT's General Exchange
Tariff.
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third party network that transits the other Party's tandem switch and fits the
circumstances described in subparagraphs (i) or (ii). The originating Party is
responsible for payment of 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. The two categories of Transit
Traffic are i) Local, and ii) Optional Area. The following details when each
element applies:
i) The Local Transit Traffic rate element applies when both the
originating and terminating end users are within SWBT local and
mandatory exchanges.
ii) The Optional Area Transit Traffic rate element applies when one
end user is in a SWBT optional exchange which is listed in
Appendix Map and the other end user is within the SWBT local or
mandatory exchanges. The Parties agree also to apply the
Optional Area Transit rate to traffic terminating to end users
in third party LECs exchange areas that share a common
mandatory local calling area with all SWBT exchanges included
in a specific metropolitan exchange area. ILEC mandatory
exchanges are listed in Appendix Map.
5.4.1.1 The Parties acknowledge that traffic originated in
third party incumbent LEC mandatory exchange areas as listed in Appendix
Map may traverse the SWBT tandem and terminate in other third party LEC
mandatory exchange areas. Although direct connections could be used for
this traffic, SWBT agrees to transit this traffic for the rate of $O.006
per MOU if the other LEC exchanges share a common mandatory local calling
area with all SWBT exchanges included in a specific exchange area.
--------------------------------------------
Type of Transit Traffic Prices Per MOU
--------------------------------------------
Local Transit $O.0031*
--------------------------------------------
Optional Area Transit $O.0040
--------------------------------------------
5.4.2 All other traffic which transits a tandem shall be compensated
in accordance with paragraphs 5.5, 5.6 or 7.3.
5.4.3 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.
* Interim in accordance with Section 30.18. This rate is composed of Tandem
Transport added to Zone C End Office Switching rounded to the nearest one
thousandth of a dollar.
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5.5 RECIPROCAL COMPENSATION FOR TERMINATION OF INTRALATA
INTEREXCHANGE TRAFFIC
5.5.1 Optional Calling Area Compensation (OCA) - For the SWBT
optional calling areas listed in Appendix Map, the compensation for termination
of intercompany traffic will be at a rate of $0.0183 per MOU. This terminating
compensation rate applies to all traffic to and from the exchange(s) listed in
Appendix Map, attached hereto and incorporated by reference, and the associated
metropolitan area and is independent of any retail service arrangement
established by either Optel or SWBT. When cost based interconnection rates for
EAS are established by the Commission in Docket 16226 (cost phase of mega-
arbitration), Optel traffic in SWBT's EAS areas shall be subject to the lesser
of the cost-based interconnection rates in such proceeding or the
interconnection rates in effect between SWBT and other incumbent LECs for such
traffic.
5.5.2 SWB also agrees to apply the OCA compensation rate of $0.0183
per MOU for traffic terminating to Optel end users in other incumbent LEC
exchanges that share a common mandatory local calling area with all SWBT
exchanges that are included in the metropolitan exchange area. Appendix Map
lists the shared mandatory local calling areas.
5.5.3 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 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
intercompany service traffic, 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 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. Optel's Meet Points with SWBT 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 bill/single tariff method. As described in the MECAB
document, each Party will render a bill in accordance with its own tariff for
that portion of the service it provides. For the purpose of this Agreement,
Optel 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
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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 bill 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 the terms and conditions
of Appendix Recording attached hereto and incorporated by reference. Information
shall be exchanged in Exchange Message Record (EMR) format, on magnetic tape 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 bill single tariff method, as described in the MECAB document. Each
Party will render a bill to the IXC in accordance with its own tariff for that
portion of the service it provides. Each Party will bill 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. When SWBT performs 800 database queries, SWBT will
charge the provider of the Signaling Service Point for the database query in
accordance with standard industry practices.
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 BAI/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. Each Party will
provide to the other the Exchange Access summary usage data within ten (10)
working days after the date that a bill is rendered to the IXC by the initial
Party. To the extent Optel provides SWBT with Access Usage Records, SWBT will
compensate Optel on the same terms as Optel compensates SWBT per Appendix
Recording. SWBT acknowledges that currently there is no charge for Summary Usage
Data Records but that such a charge may be appropriate. At Optel's request, SWBT
will negotiate a mutual and reciprocal charge for provision of Summary Usage
Data Records.
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5.6.10 Errors may be discovered by Optel, the IXC or SWBT. Both SWBT
and Optel 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 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 the following:
5.7.1.1 Each Party shall, unless otherwise agreed, adhere to
the detailed technical descriptions and 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
Optel. Reference to this technical publication is included in Appendix TP.
(a) Where Optel 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 Recorded By Optel Less Direct
-----------
End Office Terminating MOUs Recorded By SWBT Equals
--------------------------------------------
Total MOUs To Be Compensated As Tandem Traffic;
(b) Where Optel has direct/high usage trunks to a third
party with overflow trunking through a SWBT tandem,
Optel must differentiate the originating MOU records
for the Parties to ascertain how many MOUs should be
compensated as Transit Traffic. If Optel is unable to
so differentiate the originating MOU records, the
Parties shall mutually agree upon a surrogate method
for calculating Transit Traffic charges owed to SWBT.
5.7.1.2 On a monthly basis, each Party will record its
originating MOU including identification of the originating and terminating NXX
for all intercompany calls.
5.7.1.3 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.
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5.7.1.4 Bills rendered by either Party will be paid within
thirty (30) days of receipt subject to subsequent audit verification.
5.7.1.5 MOUs for the rates contained herein will be measured
in seconds by call type, and accumulated each billing period into one (1) minute
increments for billing purposes in accordance with industry rounding standards.
5.7.1.6 Each Party will multiply the tandem routed and end
office routed terminating MOUs by the appropriate rate contained in this Section
to determine the total monthly billing to each Party.
5.8 COMPENSATION FOR "PORTING" OPTIONAL CALLING AREA NUMBERS
In those instances where an Optel end user is using a SWBT Optional Calling
Area telephone number which SWBT is "porting" to Optel, Optel will compensate
SWBT $6.25 monthly, per ported number. To the extent that Optel should create
premium NXX's by assigning such NXXs exclusively to an optional two-way expanded
local calling scope authorized or approved by the Commission (to the extent such
authorization or approval is required), this compensation arrangement shall be
reciprocal.
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
Optel 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 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 connected to SWBT's access
tandems, to enable Optel's end users to originate and terminate traffic to and
from such IXCs. Nothing in this Section 6, however, shall be construed to
require Optel to route all of its end users' IXC carried traffic through SWBT.
6.2.2 Access Toll Connecting Trunks shall be used solely for the
transmission and routing of Switched Exchange Access to allow Optel end users to
originate and terminate traffic to/from any IXC which is connected to a SWBT
Access Tandem. In addition, the trunks shall be used to allow Optel's end users
to connect to, or be connected to, the 800 Services of any Telecommunications
Carrier connected to the SWBT Access Tandem.
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7.0 TRANSPORT AND TERMINATION OF OTHER TYPES OF TRAFFIC
7.1 INFORMATION SERVICES TRAFFIC
7.1.1 At such time as the Parties agree to route intraLATA
Information Services Traffic (i.e., 900 and 976 traffic) to one another, they
shall agree to exchange rating and billing information to effectively allow the
Parties to bill 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 or if the
called party agrees to release 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 line is in use at the time of interrupt or 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 Appendix Price attached hereto and incorporated by reference.
7.3 WIRELESS TRAFFIC
7.3.1 Appendix Wireless, attached hereto and incorporated by
reference 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. Appendix Wireless,
however, applies only to the division of revenue received pursuant to SWBT's
currently existing Wireless Interconnection Tariff. If one Party enters into an
interconnection agreement with a CMRS provider, Appendix Wireless shall no
longer be applicable between the Parties with respect to traffic involving such
CMRS provider, and the other Party shall make arrangements with such CMRS
provider as it deems appropriate for the termination of that CMRS provider's
traffic. Similarly, should SWBT substantively change its existing Wireless
Interconnection Tariff, or should Optel adopt a generally applicable Wireless
Interconnection Tariff, the parties agree to re-establish appropriate means for
the division of revenue, if any, under the new or changed tariff.
7.3.2 InterMTA traffic shall be handled in accordance with Section
5.6.
7.3.2.1 Optel shall pay the Local Transit Traffic rate to SWBT
for calls that originate on Optel's network and are sent to SWBT for termination
to a CMRS Provider's network.
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SWBT shall pay the Local Transit Traffic rate to Optel for calls that originate
on SWBT's network and are sent through Optel for termination on a CMRS
Provider's network. With respect to traffic not covered by either Party's
Wireless Interconnection Tariff, 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 shall be solely responsible for the
payment of terminating compensation, if any, to the CMRS provider (when the call
terminates to a third party).
7.3.3 All InterMTA traffic which transits a tandem shall be treated
as intraLATA traffic as described in Section 5.5.3 or as Meet-Point Billing
Traffic as described in Section 5.6 below, unless otherwise agreed.
8.0 SIGNALING
8.1 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.
A copy of these publications have been provided to Optel.
8.2 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.
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 North American numbering Plan (NANP) number resources
including, but not limited to, central office (NXX) codes pursuant to the
Central Office Code Assignment Guidelines/2/, 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 it is assigned.
___________________
/2/ Last published by the Industry Numbering Committee ("INC") as INC
95-0407-008, Revision 4/7/95, formerly ICCF 93-0729-010.
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9.2 At a minimum, in those Metropolitan Exchange Areas where Optel
intends to provide local exchange service, Optel shall obtain a separate NXX
code for each SWBT exchange or group of exchanges that share a common mandatory
calling scope as defined in SWBT tariffs. This will enable Optel 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 commits to treat Optel requests for assignment of central
office code(s) in a neutral and nondiscriminatory manner, consistent with
regulatory requirements, and (NXX) 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 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 forty-five (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
$10,000.00 per NXX.
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10.0 RESALE - SECTION 251(b)(1); 251(c)(4); 252(d)(3); and 271(c)(2)(B)(xiv);
10.1 Availability of SWBT Retail Telecommunications Services for Resale
SWBT shall offer to Optel for resale at wholesale rates its
Telecommunications Services, as described in Section 251(c)(4) of the Act,
pursuant to the terms and conditions of Appendix Resale attached hereto and
incorporated herein by this reference.
10.2 Availability of Optel Retail Telecommunication Services for Resale
Optel shall make available its Telecommunications Services for resale at
wholesale 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)
11.1 SWBT shall provide Optel access to unbundled network elements for
the provision of a telecommunication service as described in Section 251(c)(3)
and 271(c)(2)(B) of the Act, pursuant to the terms and conditions of Appendix
UNE attached hereto and incorporated herein by this reference.
11.2 Optel shall make available access to its Unbundled Network elements
in accordance with Section 251(c)(3) of the Act.
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 one-hundred eighty (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 Optel Physical Collocation space necessary
for Interconnection (pursuant to Section 4.0 of this Agreement) or access to
Network Elements on an unbundled basis except that SWBT may provide for Virtual
Collocation if SWBT demonstrates to the Commission that Physical Collocation is
not practical for technical reasons or because of space limitations, as provided
in Section 25l(c)(6) of the Act. SWBT shall provide such Collocation for the
purpose of 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 applicable federal and
state tariffs.
13.2 Except as otherwise ordered by the Commission or the FCC, or as
mutually agreed to by Optel and SWBT, Physical Collocation shall be available at
a Central Office Switch location classified as an end office location, a serving
wire center, a tandem office location, or a remote node that serves as a rating
point for special access or switched access transport.
14.0 NUMBER PORTABILITY - SECTIONS 251(b)(2) and 271(c)(2)(B)(xi)
14.1 The Parties shall provide to each other Interim Number Portability
(INP) on a reciprocal basis. Pursuant to the provisions in the Act, and in
accordance with the terms and conditions outlined in Appendix PORT, which is
attached hereto and incorporated herein, SWBT will provide Optel Interim Number
Portability through Remote Call Forwarding and Direct Inward Dialing technology
until Permanent Number Portability is implemented.
14.2 Once Permanent Number Portability is implemented, either Party may
withdraw, at any time and at its sole discretion, its INP offerings, subject to
thirty (30) day's advance notice to the other Party to allow the seamless and
transparent conversion of INP end user numbers to Permanent Number Portability.
15.0 DIALING PARITY - SECTION 251(b)(3); 271(c)(2)(B)(xii); and 271(e)(2)
15.1 The Parties shall provide 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) and 271(c)(2)(B)(iii)
Each Party shall provide the other Party access to its poles, ducts,
rights-of-way and conduits it owns or controls in accordance with Section 224 of
the Act on terms, conditions and prices comparable to those offered to any other
entity pursuant to each Party's applicable tariffs, contracts, or standard
agreements. In addition, even though roof space and riser capacity
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is not governed by the Section 25l(b)(4), the Parties agree that if either Party
provides access to roof space or riser capacity in a particular building it owns
or controls to another entity for provision of microwave-based communications
services, the Party will provide access to roof space or riser capacity that it
owns or controls on a first-come, first-served basis; subject in all cases to
the providing Party's normal request processes based on the evaluation of
operational issues, including, but not limited to capacity, potential
interference, roof loading, power requirements, and protection grounding, which
approval shall not be unreasonably withheld.
17.0 DATABASE ACCESS - SECTION 271(c)(2)(B)(x)
In accordance with Section 27(c)(2)(B)(x) of the Act, SWBT shall provide
Optel 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, Optel will use
the Network Element Bona Fide Request process.
18.0 INTERCEPT REFERRAL ANNOUNCEMENTS
18.1 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 states that the called number has been
disconnected or changed and provides the end user's new telephone number to the
extent that it is listed.
(a) Basic Intercept Referral Announcements are to be provided on
residential numbers for a minimum of thirty (30) days where
facilities exist and the threat of telephone number
exhaustion is not imminent.
(b) 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, but no
earlier than thirty (30) days after the disconnection of the
business telephone number.
19.0 COORDINATED REPAIR CALLS
19.1 To avoid and minimize the potential for end user confusion, each
Party shall inform their respective end users of their respective repair bureau
telephone number(s) to access such bureaus. In the event that either Party
receives a misdirected repair call, the Parties agree to employ the following
procedures for handling such calls:
(a) To the extent the correct provider can be determined,
misdirected repair
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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.
(b) In responding to 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.
20.0 OTHER SERVICES 271(c)(B)(2)(vii) AND 271(c)(2)(B)(viii)
20.1 WHITE PAGES. In accordance with Section 271(c)(2)(B)(viii) of the
Act, SWBT will make nondiscriminatory access to White Pages service available
under the terms and conditions of Appendix WP, attached hereto and incorporated
by reference.
20.2 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. SWBT will
provide Calling Name Information in accordance with and under the terms and
conditions of Appendix CNAM, attached hereto and incorporated by reference.
20.3 BILLING/COLLECTING/REMITTING. The Parties will jointly agree to
terms and conditions for Billing, Collecting and Remitting for alternately
billed local messages as described in Appendix BCR, attached hereto and
incorporated by reference.
20.4 911 AND E911 SERVICES. Pursuant to Section 271(c)(2)(B)(vii) of the
Act, SWBT will make nondiscriminatory access to 911 and E911 services
available under the terms and conditions of Appendix 911, attached hereto and
incorporated by reference.
20.5 DIRECTORY ASSISTANCE (DA). Pursuant to Section
271(c)(2)(B)(vii)(II) of the Act, SWBT will provide nondiscriminatory access to
DA services under the terms and conditions identified in Appendix DA, attached
hereto and incorporated by reference.
20.6 DIRECT ACCESS (DIRECT). Pursuant to Section 271(c)(2)(B)(ii) of the
Act, SWBT will provide nondiscriminatory access to subscriber listing
information contained in SWBT's Directory Assistance database under the terms
and conditions identified in Appendix DIRECT, attached hereto and incorporated
by reference.
20.7 OPERATOR SERVICES. Pursuant to Section 271(c)(2)(B)(vii)(III) of
the Act, SWBT shall provide nondiscriminatory access to Operator Services under
the terms and conditions identified in Appendix OS, attached hereto and
incorporated by reference.
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20.8 CLEARINGHOUSE SERVICES. To the extent requested by Optel, 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 Appendix CH, attached hereto and incorporated by
reference.
20.9 HOSTING. At Optel's request, SWBT shall perform hosting
responsibilities for the provision of billable message data and/or access usage
data received from an Optel for distribution to the appropriate billing and/or
processing location or for delivery to an Optel of such data via SWBT's internal
network or the nationwide CMDS network pursuant tO Appendix HOST, attached
hereto and incorporated by reference
20.10 SIGNALING SYSTEM 7 INTERCONNECTION. At Optel's request, SWBT shall
perform SS7 interconnection services for Optel pursuant to Appendix SS7,
attached hereto and incorporated by reference.
21.0 GENERAL RESPONSIBILITIES OF THE PARTIES
21.1 SWBT and Optel shall each use their best efforts to meet the
Interconnection Activation Dates.
21.2 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.
21.3 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.
21.4 Each Party is solely responsible for the services it provides to
its end users and to other Telecommunications Carriers.
21.5 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.
21.6 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
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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 the other Party evidence of such insurance
(which may be provided through a program of self insurance).
21.7 In addition to its indemnity obligations under Section 25.0, 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.
21.8 Unless otherwise stated, each Party will render a monthly bill 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 30.12) at the
rate specified in Section 30.12, unless otherwise specified in an applicable
tariff Each Party reserves the right to net delinquent amounts against amounts
otherwise due the other.
21.9 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 or SWBT decides not to fully
utilize industry guidelines, SWBT will provide Optel with information on its
ordering and billing format/process and requirements at the earliest practicable
time.
22.0 EFFECTIVE DATE, TERM, AND TERMINATION
22.1 This Agreement shall be effective upon execution by both Parties
("Effective Date"). Promptly following the Effective Date, the Parties shall
take all actions required to physically and operationally interconnect as
contemplated by this Agreement. The Parties shall not pass live traffic until
expressly authorized to do so by the Commission.
22.2 The initial term of this Agreement shall be one (1) year (the
"Term") which shall commence on the Date of Execution. 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 22.3.
22.3 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.
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22.4 If pursuant to Section 22.2 this Agreement continues in full force
and effect after the expiration of the Term, either Party may terminate this
Agreement ninety (90) days after delivering written notice to the other Party of
its intention to terminate this Agreement, subject to Section 22.5. Neither
Party shall have any liability to the other Party for termination of this
Agreement pursuant to this Section 22.4 other than its obligations under Section
22.5.
22.5 Upon termination or expiration of this Agreement in accordance with
this Section 22.0
(a) each Party shall comply immediately with its obligations set
forth in Section 30.6; and
(b) each Party shall promptly pay all amounts (including any late
payment charges) owed under this Agreement; and
(c) each Party's indemnification obligations shall survive.
22.6 If upon expiration or termination, the Parties are negotiating 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.
22.7 Except as set forth in Section 28.5, no remedy set forth in this
Agreement 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.
23.0 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 Optel 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.
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24.0 CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION
Each Party will abide by applicable state or federal laws and regulations
in obtaining end user authorization prior to changing end user's local
service provider to itself and in assuming responsibility for any applicable
charges as specified in Section 258 (b) of the Telecommunications Act of
1996. Either Party shall make available to the other Party a copy of such end
user authorization upon request and at no charge. Only an end user can
initiate a challenge to a change in its local exchange service provider. If
an end user notifies SWBT or Optel that the end user requests local exchange
service, the Party receiving such request shall be free to immediately
provide service to such end user. When an end user changes or withdraws
authorization, each Party shall release customer-specific facilities in
accordance with the end user's direction or that of the end user's authorized
agent. Further, when an end user abandons the premise, either Party is free
to reclaim the unbundled network element facilities it owns for use by
another customer and is free to issue service orders required to reclaim such
facilities.
25.0 SEVERABILITY
25.1 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 30.16 of this
Agreement.
25.2 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.
26.0 INDEMNIFICATION
26.1 Each Party shall be responsible only for service(s) and
facility(ies) which are provided by that Party, its authorized agents,
subcontractors, or others retained by such parties, and neither Party shall bear
any responsibility for the services and facilities provided by the other Party,
its agents, subcontractors, or others retained by such parties.
26.2 Except as otherwise provided in this Section 26.0 and Section 27.1,
and to the extent not prohibited by law and not otherwise controlled by tariff,
each Party (the "Indemnifying Party") shall defend and indemnify the other Party
(the "Indemnified Party") and hold such Indemnified Party harmless against any
Loss to a third party arising out of the negligence or willful misconduct by
such Indemnifying Party, its agents, its end user, contractors, or others
retained by such parties, in
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connection with its provision of services or functions under this Agreement.
26.3 In the case of any Loss alleged or made by an end user of either
Party, the Party ("Indemnifying Party") whose end user alleged or made such Loss
shall defend and indemnity the other Party (the "Indemnified Party") and hold
such Indemnified Party harmless against any or all of such Loss alleged by each
and every end user. Optel agrees to indemnity, defend and hold harmless SWBT
from any Loss arising out of SWBT's provision of 911 services or out of Optel's
end users' use of the 911 service, whether suffered, made, instituted or
asserted by Optel or its end users, including for any personal injury or death
of any person or persons, except for Loss which is the direct result of SWBT's
own negligence or willful misconduct.
26.4 The Indemnified Party shall be indemnified, defended and held
harmless by the Indemnifying Party against any Loss arising from such
Indemnifying Party's use of services offered under this Agreement, involving
tort claims, including claims for libel, slander, invasion of privacy, or
infringement of copyright arising from the Indemnifying Party's own
communications or the communications of such Indemnifying Party's end users; or
26.5 The Indemnifying Party agrees to defend any suit brought against the
Indemnified Party for any Loss identified in this Section 26.0. The Indemnified
Party agrees to notify the Indemnifying Party promptly in writing of any written
claims, lawsuits, or demand for which such Indemnifying Party is or may be
responsible and of which the Indemnified Party has knowledge and to cooperate in
every reasonable way to facilitate defense or settlement of claims. The
Indemnifying Party shall have the exclusive right to control and conduct the
defense and settlement of any such actions or claims subject to consultation
with the Indemnified Party. The Indemnifying Party shall not be liable for any
settlement by the Indemnified Party unless such Indemnified Party has approved
such settlement in advance and agrees to be bound by the agreement incorporating
such settlement.
27.0 LIMITATION OF LIABILITY
27.1 Except for Losses alleged or made by an end user of either Party, in
the case of any Loss alleged or made by a third party arising from the
negligence or willful misconduct of both Parties, each Party shall bear, and
its obligations under this Section 27.0 shall be limited to, that portion (as
mutually agreed to by the Parties) of the resulting expense caused by its
(including that of its agents, servants, contractors or others acting in aid or
concert with it) negligence or willful misconduct.
27.2 Except for indemnity obligations under this Agreement, 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 of this Agreement, whether in
contract or in tort, shall not exceed in total the amount SWBT or Optel has or
would have charged to the other Party for the affected service(s) or
function(s) for the time period during which the service(s) or function(s)
were not performed or were otherwise improperly performed.
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27.3 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 revenue 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, that the
foregoing shall not limit a Party's obligation under this Agreement to
indemnifying, defend and hold the other Party harmless against any amounts
payable to a third party, including any losses, costs, fines, penalties,
criminal or civil judgments or settlements, expenses (including attorneys' fees)
and Consequential Damages of such third party.
28.0 LIQUIDATED DAMAGES FOR SPECIFIED ACTIVITIES
28.1 CERTAIN DEFINITIONS. When used in this Section 28.0, the following
terms shall have the meanings indicated:
28.1.1 "SPECIFIED PERFORMANCE BREACH" means the failure by SWBT to
meet the Performance Criteria for any Specified Activity for a period of three
(3) consecutive calendar months.
28.1.2 "Specified Activity" means any of the following activities:
(i) the installation by SWBT of unbundled elements
associated with Optel end user Lines;
(ii) SWBT's provision of Interim Number Portability; or
(iii) the repair of out of service problems for Optel
("Out of Service Repairs").
28.1.3 "Performance Criteria" means, with respect to each calendar
month during the term of this Agreement, the performance by SWBT during such
month of each Specified Activity shown below within the time interval shown in
at least eighty percent (80%) of the covered instances:
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==============================================================================
SPECIFIED ACTIVITY PERFORMANCE INTERVAL DATE
(i) Optel End User Lines
--------------------
------------------------------------------------------------------------------
1-10 Lines per Service Order five (5) business days from SWBT's
Receipt of valid Service Order
------------------------------------------------------------------------------
11-20 Lines per Service Order ten (10) business days from SWBT's
Receipt of valid Service Order
------------------------------------------------------------------------------
21+ Lines per Service Order To Be Negotiated
------------------------------------------------------------------------------
(ii) Interim Number Portability
--------------------------
------------------------------------------------------------------------------
1-10 Numbers per Service Order five (5) business days from SWBT's
Receipt of valid Service Order
------------------------------------------------------------------------------
11-20 Numbers per Service Order ten (10) business days from SWBT's
Receipt of valid Service Order
------------------------------------------------------------------------------
21+ Numbers per Service Order To be Negotiated
------------------------------------------------------------------------------
(iii) Out-of-Service Repairs Less than twenty-four (24) hours from
----------------------
SWBT's Receipt of Notification of
Out-of-Service Condition
==============================================================================
28.2 SPECIFIED PERFORMANCE BREACH. In recognition of the: (1) loss of end
user opportunities, revenues and goodwill which Optel might sustain in the event
of a Specified Performance Breach; (2) the uncertainty, in the event of such a
Specified Performance Breach, of Optel having available to it customer
opportunities similar to those opportunities currently available to Optel; and
(3) the difficulty of accurately ascertaining the amount of damages Optel would
sustain in the event of such a Specified Performance Breach, SWBT agrees to pay
Optel, subject to Section 28.4 below, damages as set forth in Section 28.3 below
in the event of the occurrence of a Specified Performance Breach.
28.3 LIQUIDATED DAMAGES. The damages payable by SWBT to Optel as a result
of a Specified Performance Breach shall be $75,000 for each Specified
Performance Breach (collectively, the "Liquidated Damages"). Optel and SWBT
agree and acknowledge that (a) the Liquidated Damages are not a penalty and have
been determined based upon the facts and circumstances of Optel and SWBT at the
time of the negotiation and entering into of this Agreement, with due regard
given to the performance expectations of each Party; (b) the Liquidated Damages
constitute a reasonable approximation of the damages Optel would sustain if its
damages were readily ascertainable; and (c) Optel shall not be required to
provide any proof of the Liquidated Damages.
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28.4 LIMITATIONS. In no event shall SWBT be liable to pay the Liquidated
Damages if SWBT's failure to meet or exceed any of the Performance Criteria is
caused, directly or indirectly, by a Delaying Event. A "Delaying Event" means
(a) a failure by Optel to perform any of its obligations set forth in this
Agreement (including, without limitation, the Implementation Schedule and the
Joint Implementation Process), (b) any delay, act or failure to act by an end
user, agent or subcontractor of Optel, (c) any Force Majeure Event, or (d) for
INP, where memory limitations in the switch in the SWBT serving office cannot
accommodate the request. If a Delaying Event (i) prevents SWBT from performing a
Specified Activity, then such Specified Activity shall be excluded from the
calculation of SWBT's compliance with the Performance Criteria, or (ii) only
suspends SWBT's ability to timely perform the Specified Activity, the applicable
time frame in which SWBT's compliance with the Performance Criteria is measured
shall be extended on an hour-for-hour or day-for-day basis, as applicable, equal
to the duration of the Delaying Event.
28.5 SOLE REMEDY. The Liquidated Damages shall be the sole and exclusive
remedy of Optel for SWBT's breach of the Performance Criteria or a Specified
Performance Breach as described in this Section 28.0 and shall be in lieu of any
other damages or credit Optel might otherwise seek for such breach of the
Performance Criteria or a Specified Performance Breach through any claim or suit
brought under any contract or tariff.
28.6 RECORDS. SWBT shall maintain complete and accurate records, on a
monthly basis, of its performance under this Agreement of each Specified
Activity and its compliance with the Performance Criteria. SWBT shall provide to
Optel such records in a self-reporting format on a monthly basis.
Notwithstanding Section 30.6.1, the Parties agree that such records shall be
deemed "Proprietary Information" under Section 30.6.
29.0 REGULATORY APPROVAL
29.1 The Parties understand and agree that this Agreement will be filed
with the Commission and may thereafter be filed with the FCC. The Parties
believe in good faith and agree that the services to be provided under this
Agreement satisfy the specifically mentioned sections of the Act and are in the
public interest. 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.
29.2 The Parties agree that the performance of the terms of this
Agreement will satisfy SWBT's obligation to provide Interconnection under
Section 251 of the Act, and the requirements of the Competitive Checklist, under
Section 271 of the Act. Optel 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.
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30.0 MISCELLANEOUS
30.1 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) Optel is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and
has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.
30.2 COMPLIANCE AND CERTIFICATION.
30.2.1 Each Party shall comply with all federal, state, and local
laws, rules, and regulations applicable to its performance under this Agreement.
30.2.2 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.
30.2.3 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
30.3 LAW ENFORCEMENT.
30.3.1 SWBT and Optel 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.
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(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 use'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.
30.4 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.
30.5 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 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.
30.6 CONFIDENTIALITY.
30.6.1 All information, including but not limited to
specifications, microfilm, photocopies, magnetic disks, magnetic tapes,
drawings, sketches, models, samples, tools, technical
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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.
30.6.2 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.
30.6.3 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.
30.6.4 Unless otherwise agreed, the obligations of confidentiality
and nonuse set forth in the Agreement do not apply to such Proprietary
Information that:
(a) was at the time of receipt, already known to the Receiving
Party, free of any obligation to keep confidential and
evidenced by written records prepared prior to delivery by
the Disclosing Party;
(b) is, or becomes publicly known through no wrongful act of
the receiving Party;
(c) 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;
(d) 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;
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(e) is disclosed to a third person by the Disclosing Party
without similar restrictions on such third person's rights;
(f) is approved for release by written authorization of the
Disclosing Party
(g) 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 30.6 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.
30.6.5 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.
30.6.6 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.
30.7 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 Texas without reference to conflict of law provisions.
30.8 TAXES.
30.8.1 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
"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
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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.
30.8.2 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 bill 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.
30.8.3 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.
30.8.4 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.
30.8.5 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.
30.9 NON-ASSIGNMENT. This Agreement shall be binding upon every
subsidiary and Affiliate of either Party that is engaged in providing Telephone
Exchange and Exchange Access
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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 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. 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.
30.10 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.
30.11 AUDITS. Each Party to this Agreement will be responsible for the
accuracy and quality of its data as submitted to the respective Parties
involved.
30.11.1 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 (12) 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 twenty-four (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 twenty-four (24) months in age.
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30.12 DISPUTED AMOUNTS.
30.12.1 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 30 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 pay when due:
(i) all undisputed amounts to the Billing Party: and (ii) all Disputed Amounts
to Billing Party.
30.12.2 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.
30.12.3 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 30.12.2, 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.
30.12.4 The Parties agree that all negotiations pursuant to this
Section 30.12 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.
30.12.5 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.
30.13 DISPUTE RESOLUTION.
30.13.1 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.
30.13.2 For disputes other than disputed amounts under this
Agreement or its Appendices, each Party shall appoint a designated
representative as set forth in Section 30.12.2 and if unable to resolve the
dispute, proceed as set forth in Section 30.12.3.
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30.14 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/Optel 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
to be notified has designated by giving notice in compliance with this section,
except that notices to a Party's twenty-four (24) hour contact number shall be
by telephone and/or facsimile and shall be deemed to have been received on the
date transmitted.
============================================================================================
NOTICE CONTACT Optel CONTACT SWBT CONTACT
- - --------------------------------------------------------------------------------------------
NAME/TITLE VP-Engineering and General Manager-
Construction Competitive Provider
VP & General Account Team
Counsel
- - --------------------------------------------------------------------------------------------
STREET ADDRESS 1111 West Southwestern Bell
Mockingbird Lane Telephone Company
One Bell Plaza, Room 525
- - --------------------------------------------------------------------------------------------
CITY, STATE, ZIP CODE Dallas, TX 75247 Dallas, TX 75202
- - --------------------------------------------------------------------------------------------
TELEPHONE NUMBER
- - --------------------------------------------------------------------------------------------
FAX NUMBER 214-634-3842 214-464-1486
- - --------------------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------------------
24-HOUR NETWORK MGMT CONTACT Optel CONTACT SWBT CONTACT
- - --------------------------------------------------------------------------------------------
NAME/TITLE NSMC Control
- - --------------------------------------------------------------------------------------------
TELEPHONE NUMBER 1-800-792-2662
- - --------------------------------------------------------------------------------------------
FAX NUMBER
- - --------------------------------------------------------------------------------------------
30.15 Publicity and Use of Trademarks or Service Marks.
30.15.1 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.
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30.15.2 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.
30.16 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:
(a) Interconnection - Section 251(c)(2) of the Act; or
(b) Exchange Access - Section 251(c)(2) of the Act; or
(c) Unbundling - Section 251(c)(3) of the Act; or
(d) Resale - Section 251(c)(4) of the Act; or
(e) Collocation - Section 251(c)(6) of the Act; or
(f) Number Portability - Section 251(b)(2) of the Act; or
(g) Database Access - Section 271(c)(2)(B)(x) of the Act; or
(h) Access to Rights of Way - Section 251(b)(4) of the Act; or
(i) Operator Services - Section 271(c)(2)(B)(vii)(III); or
(j) Directory Assistance - Section 271(c)(2)(B)(vii)(II).
30.17 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.
30.18 INTERIM RATES. Some rates contained in this Agreement have been
derived from the mega-arbitration docket (AT&T et. al. Arbitration Docket No.
16189) and designated by the Commission as interim. Such interim rates are to be
replaced by subsequent rates determined by the Commission in the cost phase of
the mega-arbitration docket when such subsequent rates have been included in an
arbitrated Agreement approved by the Commission in a final order. The subsequent
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rates shall apply to this Agreement on a prospective basis only. As indicated in
this Agreement, the arbitrated rates in the following sections and appendices
are interim: Reciprocal Compensation for Transport and Termination of Local
Traffic; 800, BCR, CH, HOST, Recording, OS, DA, LIDB-V, LIDB-AS, CNAM, WP, UNE,
SS7, and the Manual Conversion Order Charges as identified in the Appendix
Resale.
30.19 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 Public Utility Commission of Texas in Docket Nos.
16189, et al. (the Arbitration Award). If the actions of Texas 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, consistent with the 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. If
negotiations fall, 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.
30.20 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.
30.21 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.
30.22 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.
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30.23 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.
30.24 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
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.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of this 28th day of April, 1997.
OPTEL (TEXAS) TELECOM, INC. SOUTHWESTERN BELL TELEPHONE COMPANY
Signature: /s/ Rory Cole Signature: /s/ Dennis B. Eidson
--------------------- ----------------------------------
Name: Rory Cole Name: Dennis B. Eidson
-------------------------- ---------------------------------------
(Print or Type) (Print or Type)
Title: COO Title: General Manager Local Interconnection
------------------------- --------------------------------------
(Print or Type) (Print or Type)
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APPENDICES INCORPORATED INTO THIS AGREEMENT
BCR (Billing, Collecting and Remitting
Wireless (Intercompany Compensation Requirements)
CH (Clearinghouse)
DCO (Designated Connecting Office)
EGA (Feature Group A)
ITR (Interconnection Trunking Requirements)
OSS (Operating Support Systems)
RECORDING (Recording)
TP (Technical Publications)
911Texas
UNE (Unbundled Network Elements Terms & Conditions)
AIN (Unbundled Advanced Intelligent Network)
CNAM (Customer Name)
DA (Directory Assistance Service)
DIRECT (Direct Access)
HOST (Hosting)
PORT (Interim Number Portability)
LIDB-AS (Line Information Data Base Administration and Storage)
LIDB-V (Line Information Data Base Validation)
MAP List of Optional Calling Area Exchanges)
OS (Operator Services)
RESALE
SS7 (Signaling System 7 Interconnection)
WP (White Pages)
800